THE PEOPLE v. ROBERT JAMES HARRIS

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. ROBERT JAMES HARRIS, Defendant and Appellant.

B229264

Decided: October 21, 2011

Michael Allen, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

I. INTRODUCTION

Defendant, Robert James Harris, appeals from a judgment after a jury convicted him of four counts of second degree robbery (Pen.Code,1 § 211) in which he used a firearm (§ 12022.53, subd. (b)) and one count of firearm possession by a felon (§ 12021, subd. (a)(1).)   Prior to trial, defendant stipulated that he had been convicted of a felony (Health & Saf.Code, § 11351.5) on March 4, 2008.

Defendant was sentenced to a total term of 17 years and 4 months consisting of:  3 years (the middle term) as to the base term on count 1 plus 10 years for firearm use (§ 12022.53, subd. (b));  as to count 2, a consecutive term of 1–year 4 months plus 3 years, 4 months for the firearm use enhancement was imposed;  and as to counts 3 and 4, two concurrent terms of 2 years, plus 10 years for the firearms use enhancement.   Finally, defendant was sentenced to 2 years (the middle term) on count five but the sentence was stayed pursuant to section 654, subdivision (a).   Defendant was given 303 days of custody credits consisting of 264 of actual custody plus 39 days of conduct credits.   Defendant was ordered to pay:  a restitution fine of $200 (§ 1202.4, subd. (b)(i));  a $200 court security assessment fee (§ 1465.8, subd. (a)(1);  a $150 criminal conviction fee (Gov.Code, § 70373);  and a $36 crime prevention fine (§ 1202.5).

The abstract of judgment reflects the section 1202.45 parole restitution was imposed.   On April 7, 2011, defendant's motion to amend the abstract of judgment to correct the section 1465.8, subdivision (a)(1) court security assessment.   The trial court ordered the abstract of judgment amended to reduce the $200 court security fee to $150.   We affirm the judgment.

II. THE FACTS

A. Robbery of Kevin Hopper

A little before midnight, on February 28, 2010, Kevin Hopper, was at the Barbary Coast strip club.   Mr. Hopper parked to the rear of the club.   Mr. Hopper noticed defendant and co-defendant, Obinna Chukwu, standing in the rear parking lot as if they were urinating.

Mr. Hopper got out of his car.   Defendant and Mr. Chukwu then approached.   Defendant, who had a handgun, was the shorter of the two and had on a dark blue hat.   Mr. Chukwu was the taller of the two and was very aggressive.   Mr. Chukwu had a really deep Jamaican or Caribbean Island accent, which made it hard to understand.   Defendant said Mr. Chukwu wanted Mr. Hopper's money.   Mr. Hopper replied that he did not have any money.   When he was asked again, Mr. Hopper threw his money and keys on the ground.   He had about $200.

Mr. Chukwu searched Mr. Hopper's pockets.   Mr. Chukwu went into the car and tried to open the glove box but it was broken.   Defendant told Mr. Hopper, “Go ahead, get in your car.”   Mr. Hopper got into his car and drove about a mile to Starz, a strip club located at Rosecrans Boulevard and Western Avenue.   Mr. Hopper saw a police officer leaving the parking lot.   Mr. Hopper described what had happened and gave the officer a description of defendant and Mr. Chukwu.   Mr. Hopper subsequently returned to the Barbary Coast club.   Mr. Hopper saw the police holding defendant and Mr. Chukwu.   Mr. Hopper identified the two men as the ones who had robbed him.

B. Robbery Of Rodney Benton And Jeff Smith

On February 28, 2010, a couple of minutes before midnight, Rodney Benton and Jeff Smith 2 drove to the parking lot of Starz.   Mr. Benton was driving and Jeff was on the passenger side.   After they parked, Jeff heard Mr. Benton say “damn.”   Jeff looked up and saw defendant with a gun pointing at Mr. Benton's temple.   Defendant said things like “what you got” or “empty your pockets.”   Defendant took $172 dollars from Mr. Benton.   Defendant also took a cell phone which was in Mr. Benton's left pocket.

Mr. Chukwu was standing to the right of Jeff. Mr. Chukwu was holding his hand in his pocket.   Mr. Chukwu pointed “something” at Jeff. Jeff tried to exit the car.   Defendant told Mr. Chukwu to stop Jeff. Mr. Chukwu reached inside the window and went through Jeff's pockets.   Jeff said he only had a couple of dollars.   Jeff went into his left pocket and pulled out a couple of singles.   Mr. Chukwu said, “You got more money than this, nigger.”   Mr. Chukwu then went into Jeff's right pocket and took another dollar or two.   Defendant then said:  “He got more money than that, man.   Go in his back pockets.”   Mr. Chukwu went into Jeff's back pocket and took out a wallet.   Mr. Chukwu then opened up the glove compartment and took Jeff's cell phone.

Defendant and Mr. Chukwu eventually allowed Mr. Benton and Jeff to leave.   Mr. Benton saw defendant and Mr. Chukwu go towards a back alley.   Mr. Benton and Jeff called the police.   Mr. Benton and Jeff met the police in a parking lot across the street from Starz.   An officer approached Mr. Benton with a cell phone.   Mr. Benton was able to identify the cell phone as his and unlock it with his password.

C. Robbery Of Marcus Smith

Marcus Smith was in the parking lot intending to go to the Starz strip club a little before midnight on February 28, 2010.   Marcus noticed defendant and Mr. Chukwu.   Marcus subsequently told the police that he thought the two men were urinating against the fence.   The two men looked suspicious so Marcus waited for them to pass.   After they passed, Marcus thought it was safe and exited his truck.   Defendant and Mr. Chukwu headed back towards Marcus.

Defendant and Mr. Chukwu began talking to Marcus about the club.   Defendant then pulled out a small revolver.   Defendant demanded Marcus's money.   Marcus said he had about $160.   They took no money and left.   Marcus subsequently called the police and gave them a description of the suspects.   Marcus testified at trial that defendant was wearing a beanie and a jacket.

D. Defendant's Arrest

Gardena Police Officer Nathan Jones, received a radio call of a robbery.   The suspects were described in the radio call.   Officer Jones observed defendant and Mr. Chukwu.   Defendant bent down in mid-stride.

Gardena Police Officer Atanacio Jimenez was also on duty shortly before midnight on February 28, 2010.   Officer Jimenez responded to a report of a robbery at the Starz strip club.   Marcus gave a description of the individuals who had robbed him.   Officer Jimenez began looking around.   Mr. Hooper then contacted Officer Jimenez.   Mr. Hooper said he had been robbed at the Barbary Coast club.   Officer Jimenez broadcast the description to the other officers and began to drive toward the Barbary Coast club.   Officer Jimenez saw defendant and Mr. Chukwu.   Officer Jimenez observed defendant bend down and place an object on the grass.

Officer Jones told two officers to go check where defendant had bent down.   A loaded gun with six live rounds was found where the defendant had bent over.   No fingerprints were found on the gun or live rounds.   Marcus testified that the recovered gun looked exactly like the type of firearm that was pointed at him.   Officer Jones searched Mr. Chukwu.   When searched, Mr. Chukwu had “wads of cash” in his pockets.   Mr. Benton's cell phone was found in defendant's left front pants pocket.

III. DISCUSSION

We appointed counsel to represent defendant on appeal.   After examination of the record, counsel filed an “Opening Brief” in which no issues were raised.   Instead, appointed appellate counsel requested we independently review the entire record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441.   We have examined the entire record and are satisfied appointed appellate counsel has fully complied with his responsibilities.   No argument exists favorable to defendant.  (Smith v. Robbins (2000) 528 U.S. 259, 277–284;  People v. Kelly (2006) 40 Cal.4th 106, 112–113;  People v. Wende, supra, 25 Cal.3d at p. 441.)

On June 21, 2011, we advised defendant that he had 30 days within which to personally submit any contentions or arguments he wished us to consider.   On July 11, 2011, defendant filed a letter requesting this court examine Marcus' testimony for discrepancies.   Defendant asserts that Marcus described the person holding the gun as 5 feet, 11 inches tall.   Defendant is only 5 feet, 7 inches tall.   Defendant also points to some inconsistencies in the clothing description given by Marcus.   These discrepancies between defendant's height and clothing description were merely evidentiary issues for the jury to resolve.  (People v. Hill (1998) 17 Cal.4th 800, 849;  People v. Mayfield (1997) 14 Cal.4th 668, 800.)   Furthermore, Marcus identified defendant as the armed robber who demanded money.   Defendant then took about $160 from Marcus.   The jury resolved the discrepancies against defendant.   We may not reweigh the testimony.

IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. There were two robbery victims with the surname Smith.   We refer to those victims by their first names for clarity and not out of any disrespect..  FN2. There were two robbery victims with the surname Smith.   We refer to those victims by their first names for clarity and not out of any disrespect.

ARMSTRONG, J. MOSK, J.