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People v. Spicer

Court of Appeals of California, Second District, Division Eight.
Nov 12, 2003
B165978 (Cal. Ct. App. Nov. 12, 2003)

Opinion

B165978.

11-12-2003

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL SPICER, Defendant and Appellant.

Michael Spicer, in pro. per.; Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.


INTRODUCTION

Michael Spicer appeals from judgment entered after a jury convicted him of second degree robbery. We appointed counsel to represent Spicer on appeal. After examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record. Acting in propria persona, appellant subsequently filed a supplemental letter brief setting forth his concerns regarding the arrest of his friend during trial and the fact the jury reached a verdict before the trial court honored one of its requests for the re-reading of testimony. We conclude neither of appellants concerns constitute error and that no arguable issues exist.

BACKGROUND AND PROCEDURAL HISTORY

Alan and Jennifer Shapiro were standing outside a restaurant waiting for it to open. Mr. Shapiro placed his tote bag on top of a trash can as he showed Mrs. Shapiro a calendar he had just purchased. Appellant, who had been using a pay phone about 10 feet away, approached the trash can, grabbed the tote bag, and ran. Mr. Shapiro chased appellant, but abandoned the chase after appellant turned and sprayed something at him. Shapiro thought it was pepper spray or a similar product.

The jury convicted appellant of second degree robbery. In a bifurcated trial of prior conviction allegations, the court found appellant had suffered ten prior serious or violent felony convictions within the meaning of the Three Strikes Law and one serious felony conviction within the scope of Penal Code section 667, subdivision (a)(1). The court also found appellant had served numerous prior prison terms within the scope of Penal Code section 667.5, subdivision (b)(1). It sentenced him to 30 years to life in prison.

We appointed counsel to represent Spicer on appeal. After examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record. On June 26, 2003, we advised Spicer he had 30 days within which to personally submit any contentions or issues he wished us to consider. On July 3, 2003, he filed a letter raising two issues for our consideration.

DISCUSSION

Appellant initially complains of the arrest of his friend Ronald Harvey during trial and says the jury must have been prejudiced by prosecution witness Derrik Morgans "false identification" of Harvey and the subsequent arrest.

Morgan testified he heard Mrs. Shapiros screams for help, saw appellant and Mr. Shapiro struggling for the tote bag, and chased appellant. He then saw appellant jump through a window into a car driven by another man, who drove quickly away. Morgan identified a courtroom spectator as the driver of the car. The court recessed and, after the jury departed, sheriffs deputies arrested the man.

The next day, the defense called Ronald Harvey, who testified he was appellants lover, and that he was arrested in court the day before, but released after about 30 minutes. Harvey did not know appellant at the time of the charged crime and had not served as appellants getaway driver.

Defense counsel argued the jury should disregard Morgans testimony because, inter alia, he falsely identified Harvey as the getaway driver.

Appellant has established neither error nor resulting prejudice stemming from Harveys arrest. The arrest took place outside the presence of the jury, not in its presence, as appellant argues. Had the defense not called Harvey as a witness, the jury would not have known of the arrest or, as far as the record reveals, that Harvey was appellants friend. Moreover, the defense put Morgans mistaken identification of Harvey to good use, by arguing that it cast great doubt upon the credibility of the remainder of Morgans testimony.

Appellant also raises the issue of the courts failure to satisfy the jurys request for the re-reading of Mrs. Shapiros testimony before the jury reached a verdict. The jury requested a re-reading of both Mr. and Mrs. Shapiros testimony regarding when they "first realized [they] were being robbed" and the use of pepper spray. The court itself re-read Mr. Shapiros testimony, of which the court possessed a printed transcript. The court informed the jury, however, that the court reporter who took Mrs. Shapiros testimony had taken the day off and would not be available to re-read the testimony until the next day. The court stated Mrs. Shapiros testimony would be provided the next morning, but asked the jury to continue to deliberate in the meantime. The jury did so, and in less than an hour, it returned a verdict.

Appellant has established neither error nor resulting prejudice. The court did not deny the jurys request for re-reading, but was simply unable to completely satisfy the request at that time. Indeed, the court told the jury the requested testimony would be re-read as soon as possible, i.e., upon the court reporters return to work the next day. The fact that the jury quickly reached a verdict without re-hearing Mrs. Shapiros testimony establishes that the jury did not, in fact, need to re-hear her testimony to agree upon a verdict. In this regard, it is noteworthy that appellant conceded he took Mr. Shapiros bag, but denied he had pepper spray and contended the crime was theft, not robbery. The court re-read Mr. Shapiros testimony regarding the use of a spray. Appellant could not possibly have been prejudiced by the fact the jury did not re-hear Mrs. Shapiros testimony regarding pepper spray, which was consistent with, but stronger and more extensive than Mr. Shapiros testimony on the point.

In addition to considering the above contentions, we have examined the entire record and are satisfied appellants attorney has fully complied with his responsibilities and that no arguable issue exists. (People v. Wende (1979) 25 Cal.3d 436, 441.)

DISPOSITION

The judgment is affirmed.

We concur: COOPER, P.J. and RUBIN, J. --------------- Notes: Morgan memorized the license plate of the car and immediately wrote it down on paper provided by Mrs. Shapiro. The car was registered in appellants name.


Summaries of

People v. Spicer

Court of Appeals of California, Second District, Division Eight.
Nov 12, 2003
B165978 (Cal. Ct. App. Nov. 12, 2003)
Case details for

People v. Spicer

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MICHAEL SPICER, Defendant and…

Court:Court of Appeals of California, Second District, Division Eight.

Date published: Nov 12, 2003

Citations

B165978 (Cal. Ct. App. Nov. 12, 2003)