Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC807565
Bamattre-Manoukian, ACTING P.J.
Defendant was charged by information with one count of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)). The information further alleged that defendant personally used a firearm in the commission of the offense (§ 12022.53, subd. (b)). A jury found defendant guilty of the substantive offense and found the personal use allegation to the true.
All further statutory references are to the Penal Code.
The Trial Evidence
Marcely Cruz and her daughter were working at an AM/PM store on Monterey Highway in San Jose on the night of April 25, 2008, when defendant entered the store. Cruz recognized defendant as a person who had taken beer from the store before without paying for it. Defendant headed directly for the beer cooler so Cruz told her daughter to go stand by the store’s door. Her daughter did so. Defendant returned to the door carrying beer in his right hand and a shotgun in his left hand. Without pointing the gun at either Cruz or her daughter, defendant said, “If you want to interfere.” Seeing the gun, Cruz told her daughter to let defendant leave. Cruz was worried that defendant might use the gun if she tried to intervene. Defendant walked out of the store with the beer and left in a blue station wagon that was waiting outside.
Cruz called 911. She reported that the robber was Hispanic, five feet five inches tall, between 20 and 26 years old, with both a crew cut and long hair. She said that he had a shotgun, that he took an 18-pack of Budweiser, and that he left in a blue car. An officer arrived while Cruz was on the phone. The officer testified that both Cruz and her daughter appeared to him to be afraid.
The store’s video recording of the robbery was seized and was played for the jury. The video showed that the robber had short hair on the sides and a ponytail at the back, and that he was wearing black Nike shoes, khaki pants and a gray sweatshirt. It also showed that he had pulled the shotgun out of his pants while he was at the beer cooler, and that the gun had a shoelace strap.
On May 18, 2008, officers searched defendant’s family’s home. Defendant’s mother directed the officers to defendant’s bedroom. The bedroom window was open and pants were lying on the bush just outside the window. Defendant was found outside, beneath the window, crouched down in his boxer shorts and undershirt. Inside the bedroom, officers found letters addressed to defendant, pictures of him, a loaded sawed-off shotgun with a shoestring strap, two pairs of black Nike shoes, and a gray sweatshirt. Gabriel Perez, defendant’s stepfather, testified that his son Matthew owned a blue-gray station wagon on April 25, 2008. The station wagon resembles the car used in the robbery. Perez told an investigating officer that defendant had access to the car on April 25, 2008. Defendant was 17 years old at that time.
On May 20, 2008, officers showed Cruz a photographic lineup consisting of six separate pages. There were no photos on pages four and five due to a printer malfunction that occurred during the computer creation of the lineup. Cruz picked defendant’s photo, which was No. 1, out of the lineup and identified him as the robber. She also identified defendant as the robber at trial. Although Cruz was not able to identify defendant at his preliminary examination as the robber, defendant’s hairstyle and weight had changed “drastically” between the date of the robbery and the date of the preliminary examination.
The Verdicts and Sentencing
On December 11, 2008, the jury found defendant guilty of taking personal property in the possession of Marcely Cruz, from her person and immediate presence and against her will by means of force or fear (§§ 211, 212.5, subd. (c)). It further found that defendant personally used a firearm within the meaning of section 12022.53, subdivision (b). Defendant filed a statement in mitigation on January 6, 2009, requesting that the court sentence him to the minimum term of 12 years. On January 26, 2009, the court denied probation and sentenced defendant to 13 years in state prison, consisting of the middle term of three years for the robbery and 10 years for the firearm use enhancement.
This Appeal
Defendant filed a timely notice of appeal and we appointed counsel to represent him in this court. Counsel has filed a brief which states the case and facts but which raises no issues. However, counsel has “identified potential issues for review” “for this court’s guidance.” We will address these “issues.”
Counsel first asserts that the photographic lineup was “impermissibly suggestive such that the in-court identification should have been suppressed.” The officer who presented the lineup to Cruz did not know who in the lineup was a suspect in the robbery. The court stated that “all of the other photographs have... gentlemen similar in age to the defendant, grossly similar coloration. They all have faces that are relatively full in the sense that none are really, really skinny guys or anything particularly unusual. [¶] Photograph number 2, the gentleman actually has a fair amount of mustache shadow. If I look at it quickly, I would probably say he has a mustache, but it’s a matter of degree, I guess. It’s pretty short. All of them have, what in guy parlance would be, pretty short hair in the sense that none extend over the ear, none have bangs, anything other than pretty short hair. None, of course, as short as the majority of the defendant’s head as noted by the defense.” Accordingly, the trial court did not find the lineup to be impermissibly suggestive “to rise to a substantial likelihood of irreparable misidentification, which is the guidance given.” (See Simms v. United States (1968) 390 U.S. 377, 384.)
Counsel next asserts that the trial court violated due process by giving a flight instruction “in a manner that misled the jury, allowing the jury to conclude that [defendant] was guilty of this crime due to flight, when he was in fact fleeing for an entirely different reason.” The record on appeal indicates that at the time the officers conducted a search of defendant’s residence, defendant was on probation with a search condition, there was a no-bail warrant for his arrest as he had absconded from “the boys’ ranch,” and defendant was not a suspect in the robbery at issue, but the shotgun used in the robbery was in his bedroom. The court granted defendant’s motion to exclude evidence at trial of the reason for the search of defendant’s home, defendant had no way of knowing whether he was a suspect in the robbery, and the court modified CALCRIM No. 372 to read: “If the defendant fled or tried to flee, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.” As defendant was found attempting to hide outside his open bedroom window at the time of the search, reasonable jurors could properly infer that defendant had attempted to flee because he knew he had used the gun in his bedroom in a robbery.
Counsel also asserts that, because Cruz “repeatedly testified that she was not afraid, there was insufficient evidence to support a robbery conviction, which requires that the taking be by means of force or fear.” The record indicates that Cruz told the officer who responded to the 911 call that the incident did not scare her, and she did not feel threatened, because she was “used to beer runs.” She also told a defense investigator that she was afraid in prior robberies when the robber held her at gunpoint and ordered her to lie on the ground, but she was not afraid during this robbery. However, Cruz also told the investigator that she thought defendant might use the gun if she intervened and Cruz testified at trial that she thought defendant might shoot her daughter.
We notified defendant of his right to submit written argument in his own behalf within 30 days. That period has elapsed and we have received no written response from defendant. Pursuant to People v. Wende (1979) 25 Cal.3d 436, and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record and have concluded that there is no arguable issue on appeal.
The judgment is affirmed.
WE CONCUR: MIHARA, J., MCADAMS, J.