Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA305509, Charlaine F. Olmedo, Judge.
Jonathan B. Steiner and Ronnie Duberstein, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ALDRICH, J.
Vincent P. Wilkerson (Wilkerson) appeals from the judgment entered following a jury trial which resulted in his conviction of first degree, residential robbery (Pen. Code, § 211), during the commission of which he personally used a firearm (§ 12022.53, subd. b)), being a felon in possession of a firearm (§ 12021, subd. (a)(1)) and first degree, residential burglary (§ 459), during which he personally used a firearm (§ 12022.5, subd. (a)). The trial court sentenced Wilkerson to 14 years, eight months in prison. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Geraldine Wilkerson (Geraldine) lived at 5608 Aladin Street in Los Angeles with her son, Wilkerson, and Wilkerson’s daughter, Arika-Monique McNeil (McNeil). Geraldine had made financial arrangements with both Wilkerson and McNeil under the terms of which she would give each of them $1,000 each month. Geraldine gave Wilkerson and McNeil each $500 on the first day of the month and the remaining $500 on the 15th. Geraldine was not legally obligated to give the money to Wilkerson and McNeil; she did so because Wilkerson was not working at the time and McNeil, a student, needed the money for school expenses. Wilkerson had lived with Geraldine for his entire life. Geraldine believed he was a paranoid schizophrenic and she knew that he used drugs.
At approximately 10 p.m. on July 5, 2006, Wilkerson knocked on Geraldine’s locked bedroom door and demanded that she let him in. When she refused, Wilkerson kicked the door open, breaking the lock, and entered the room. That day, Wilkerson had been “pestering” Geraldine for money and when he entered her bedroom that night, he again asked for money. Geraldine told Wilkerson that, if he had already spent the $500 she had given to him on July 1, he would have to wait until the 15th for more. Wilkerson became angry and said he was going to get his gun. He left the bedroom, went downstairs and retrieved his gun. When he returned to Geraldine’s bedroom, Wilkerson approached Geraldine, aimed the gun at her stomach, spit on her, then demanded that she give him money. Afraid that Wilkerson might shoot her, Geraldine reached for her checkbook and wrote a check to Wilkerson in the amount of $400.
McNeil had heard Wilkerson kick in Geraldine’s bedroom door and she went to Geraldine’s room and stood in the doorway. Wilkerson heard McNeil, turned around for a moment, aimed the gun at McNeil’s chest and told her to go back to her room. When McNeil didn’t move, Geraldine told McNeil to go to her bedroom because she, Geraldine, “didn’t want [McNeil] to get hurt.” Geraldine was afraid Wilkerson might shoot McNeil. During that moment when Wilkerson’s back was turned to her, Geraldine “mouthed” to McNeil to “ ‘call the police.’ ” McNeil, who was “very afraid” and “pretty excited,” then left Geraldine’s bedroom and telephoned the police. After Wilkerson took the $400 check from Geraldine, he left her room, went down the stairs and out the front door of the house.
Los Angeles Police Officers Adan Urena (Urena) and John Flores (Flores) responded to McNeil’s call. After speaking with Geraldine and McNeil and inspecting the broken lock on Geraldine’s bedroom door, Urena and Flores went to “a check cashing location in the area of La Cienega and Rodeo.” There, they found Wilkerson sitting on the curb. After detaining Wilkerson, Urena recovered from him a loaded “blue steel .22 caliber revolver.” Flores went inside the check cashing business and an employee gave to the officer the check Wilkerson had attempted to cash there.
The parties stipulated that “on or about March 20, 1996, the defendant, Vincent Pierre Wilkerson, was convicted of a felony in case number BA127013.”
2. Procedural History.
In a three count amended information filed February 2, 2007, Wilkerson was charged in count one with second degree robbery of Geraldine (§ 211), during the commission of which he personally used a firearm (§ 12022.53, subd. (b)), in count two with assault with a firearm of McNeil (§ 245, subd. (a)(2)), during which he personally used a firearm (§ 12022.5), and in count three with being a felon in possession of a firearm (§ 12021, subd. (a)(1)).
In a motion filed on February 2, 2007, the People requested the trial court to submit to the jury certain circumstances in aggravation for purposes of sentencing. After considering the People’s request and defense counsel’s “Special Demurrer to Aggravating Factors Alleged in the Information,” the trial court denied the request. On February 6, 2007, a second amended information was filed. As to count one, the information alleged Wilkerson committed first degree, rather than second degree, robbery. Then, in addition to the remaining two counts charged in the amended information, a fourth count was alleged charging Wilkerson with first degree burglary of that portion of an inhabited building occupied by Geraldine (§ 459), during the commission of which he personally used a firearm (§ 12022.5, subd. (a)).
Trial was by jury. During deliberations, the jury sent the following questions to the trial court: “1. For the burglary count, if the defendant believed the money belonged to him, even if unreasonable, does this satisfy the intent for robbery or assault with a firearm? [¶] 2. Does ‘entry’ into a room in a building in which the defendant resides constitute ‘entry’ as defined in the burglary count? [¶] 3. Does the restraining order keep the defendant from having legal right [sic] to be in the house, even if mother allowed him to reenter?” After discussing the questions with counsel, the trial court submitted the following responses: “1. Please refer to instruction numbers 1600, 1700 and 875 for the elements of the crimes. [¶] 2. Please refer to instruction number 1600 for the elements of the crime. [¶] 3. You have all the evidence before you. Please do not speculate further on matters not before you.”
After further deliberations, the jury informed the trial court that, although it was able to reach verdicts on three of the counts, it was deadlocked with regard to the assault on McNeil with a firearm alleged in count two. After questioning the jurors, the trial court determined the jury could not reach a verdict and declared a mistrial as to that count. With regard to the remaining counts, the jury found Wilkerson guilty of the alleged offenses and found the gun use allegations to be true.
At proceedings held on March 1, 2007, the trial court indicated it had read and considered both the prosecution’s and defense counsel’s sentencing memoranda in addition to the probation report. The trial court then sentenced Wilkerson to the middle term of four years in prison for his conviction of first degree robbery as alleged in count one. For Wilkerson’s use of a firearm during the offense, the trial court imposed a consecutive term of 10 years in prison pursuant to section 12022.53, subdivision (b). For his conviction of being a felon in possession of a firearm, the trial court imposed a consecutive term of one-third the mid-term, or eight months in prison. In support of this sentence choice, the trial court indicated Wilkerson had served a prior prison term and was on probation when he committed the offense. With regard to his conviction of first degree burglary, the trial court stayed imposition of sentence pursuant to section 654. In total, the trial court sentenced Wilkerson to 14 years, eight months in prison.
The trial court imposed a $200 restitution fine pursuant to section 1202.4, subdivision (b), a $200 parole revocation restitution fine pursuant to section 1202.45 and a $20 court security fee pursuant to section 1465.8, subdivision (a)(1). Wilkerson was awarded presentence custody credit for 240 days actually served and 36 days of good time/work time, for a total of 276 days.
Wilkerson timely filed a notice of appeal on March 1, 2007.
This court appointed counsel to represent Wilkerson on appeal on June 12, 2007.
CONTENTIONS
After examination of the record, appointed appellate counsel made a motion in the trial court to correct the abstract of judgment and the clerk’s minute order of March 1, 2007 to properly reflect that the court had imposed the middle, rather than the upper, term of four years in prison for Wilkerson’s conviction of first degree robbery. Counsel then filed in this court an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed October 2, 2007, the clerk of this court advised Wilkerson to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.
APPELLATE REVIEW
We have examined the entire record and are satisfied Wilkerson’s counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.