THE PEOPLE v. Lamel Jowan Wilson, Defendant and Appellant. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Lamel Jowan Wilson appeals from the judgment entered following a jury trial which resulted in his conviction of attempted second degree robbery (Pen.Code, §§ 664/211) ¹ and the trial court's finding that he had served four prison terms (§ 667.5, subd. (b)).  The trial court sentenced Wilson to seven years in prison.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

During the early afternoon hours of August 23, 2010, Kenneth Robinson went to the campus of Los Angeles Southwest College to deliver some photographs of a family member he was donating to the library.   The photographs were of Dr. Ralph Bunche, who had won a Nobel prize for issues he had been involved with in the Middle East. The life of Dr. Bunche had also been the subject of lectures Robinson had given at local colleges and universities.

Robinson, however, first went to meet with representatives of disabled students.   He has had several heart attacks which left him with “decreased stamina.”   He was considering taking a class at the college and the disabled student representative was to assist him in scheduling it.   However, when he went to meet with the representative in the Disability Office, he was told that the representative was out and was not expected to return for at least an hour.   Robinson then decided to go to the library, approximately 150 yards away.   Although he had made arrangements to meet with the dean and the library staff, when he arrived, the library was closed.   At that point, Robinson decided to leave the campus.

As he was walking toward the gate to leave, Wilson approached Robinson from behind and tapped him on the left shoulder.   As Robinson spun around to see who was “tapping” him, Wilson struck him in the jaw, then demanded that Robinson give him his wallet and cell phone.   Robinson, who is 6 feet 6 inches tall and weighs 325 pounds, stepped back and said, “ ‘No.’ “ Wilson, who is approximately 6 feet tall and weighs approximately 200 pounds, then attempted to strike Robinson four or five more times and continued to demand his wallet and cell phone.   Robinson, however, was able to fend off Wilson's attack.

After Wilson was unsuccessful in taking Robinson's “personal items,” he walked backward and reached into a satchel he was carrying.   Wilson said that he had a gun, although Robinson never saw it.   Wilson then started to walk north, in the direction of the college parking lot.   He said that he was “going to get his homies involved in this to retaliate against [Robinson].”

Robinson quickly walked over to the sheriff's office, which was 50 to 75 yards away, and “alerted the ․ person who was there that an individual [had] just tried to rob [him].”   Robinson was treated for a shoulder injury, or torn rotator cuff, a lacerated lip and several contusions.   The torn rotator cuff still prevents Robinson from moving his arm above his shoulder.

Los Angeles County Deputy Sheriff Humberto Barragan is currently assigned to the “College Bureau.”   The bureau provides patrol services for all nine campuses in the South Bay. Barragan was assigned to the Los Angeles Southwest College campus.   The campus has a local dispatch where calls are processed from professors, students or individuals just passing by.

At approximately 12:40 in the afternoon on August 23, 2010, Barragan received a call from the dispatch indicating that there had been an attempted robbery on campus and that the victim was at the station.   A description of the man who had committed the attempted robbery was given and the dispatcher indicated where he had last been seen.   Barragan, who was on the east side of the campus, approximately 500 yards from the station, went to the area where the incident occurred.

As he made his way west, Barragan saw an individual who matched the description of the man who had committed the attempted robbery.   Wilson was walking north, toward a 1999 white Cadillac parked in the lot.   All of the windows were up and neither the engine nor the ignition had been “punched.”   There was no damage of any type to the body of the car.   When deputies later searched the Cadillac, using the keys found in Wilson's possession to gain access, they found no gun.

Barragan detained Wilson.   Wilson was perspiring and there was a rip down the front of his shirt.   He told Barragan that “he had gotten into a fight with a guy who [had] stole[n] his car.   Wilson indicated that Robinson had actually driven the car and that he, Wilson, could no longer find it.

When Barragan first stopped Wilson, he “looked disturbed.”   Barragan stated:  “He looked like there was something wrong.   You know, he's walking, he's looking around and walking real fast.   So I asked him to stop.   He turns around.   You know, I see his shirt is ripped.   Based on his description, based on the fact that I see his shirt ripped and he's sweating profusely, he looks ․ disturbed.   And when I started asking him questions, he was all over the place.   Initially, he wouldn't comply with my commands.”

Barragan had the victim, Robinson, who was at the station being treated by paramedics, walk to Southwest Drive, where Wilson was being held.   As they made their way toward Wilson, Barragan “explained that [the deputy sheriffs] were detaining someone that [might] be or [might] not be the person that [had] assaulted him.  [Barragan] ․ pulled out a field interview procedures card and read [it to Robinson] verbatim.”   When they got to the area where Wilson was being held, Robinson identified Wilson as the man who had attempted to rob him.

2. Procedural history.

Following a preliminary hearing, on October 12, 2010 an information was filed charging Lamel Jowan Wilson with the crime of attempted second degree robbery in violation of sections 664 and 211, a felony.   It was alleged that Wilson unlawfully and by means of force and fear attempted to take personal property from the person, possession, and immediate presence of Kenneth Robinson.

It was further alleged as to count 1 that, within the meaning of section 667.5, subdivision (b), Wilson had served prison terms for the following prior convictions:  (1) displaying a forged driver's license or identification card in violation of section 470b;  (2) using any manufactured weapons while being conveyed from one penal institution to another in violation of section 4502, subdivision (b);  (3) having been convicted of a felony for the use of any narcotic drug while owning or keeping in his possession a firearm in violation of section 12021, subdivision (a)(1);  and (4) having committed a battery against a custodial officer, firefighter, emergency technician or other emergency personnel in violation of section 243, subdivision (c)(1).

At proceedings held on October 12, 2010, Wilson pleaded not guilty to count 1 and denied the additional charges.   Bail was set in the amount of $15,000.

Wilson chose to have count 1 tried by a jury.   After the evidence was presented, on the afternoon of January 28, 2011, the jury was instructed on the law.   Counsel then presented their arguments to the jurors, who commenced their deliberations at approximately 4:00 p.m. When the trial court then asked Wilson if he wished to be present during any request for the readback of testimony or the asking of questions by the jury, Wilson stated, “No, I'm not going to waive.”

On Monday, January 31, 2011, the prosecutor addressed the court and indicated, “We just [haven't] determined anything on when the jury comes back, obviously, whether or not the defendant is going to have a jury trial on the priors, have a court trial or admit the priors.”   Defense counsel stated that Wilson “ha[d] indicated to [him] that he would be satisfied with a court trial.”   The prosecutor then asked Wilson:  “Do you agree ․ that the judge can hear the case as it relates to the priors if it becomes necessary to determine whether or not you suffered these prior convictions and were in custody within the meaning of the charged ․ Code sections ․ ?” Wilson responded, “Yes.”

Shortly thereafter, the jury indicated to the court that it had reached a verdict.   The court clerk read the verdict as follows:  “Title of court and cause:  [¶] We, the jury, in the above-entitled action, find the defendant, Lamel Jow[a]n Wilson, guilty of the crime of attempted second-degree robbery, in violation of ․ Code section[s] 664/211, a felony, as charged in count 1 of the information.”

After the jury was dismissed, Max Wheatley, a paralegal for the Los Angeles District Attorney's Office, testified that prison and other records indicated that Wilson had suffered the alleged prior convictions and prison terms.   Wheatley reviewed Wilson's “chronological history.”   A “chronological history” is a “general overview of the inmate's ins and outs of the prison system.”   It would indicate under what case a defendant was sentenced to prison, under what case he or she was committed, the dates that he or she went to prison, when he or she was paroled, when he or she was released from parole and, finally, when they were placed back in prison.  “It's completed by personnel at the California Department of Corrections.”   Wilson's “chronological history” showed “points where he was released [from custody], ․ then taken back in, ․ that never exceeded five years.”   In addition to the chronological histories, Wheatley presented eight abstracts of judgment.   They, too, indicated that Wilson never exceeded five years between prison terms.   After reviewing the documents presented, the trial court found true the allegations that Wilson had suffered the prior convictions and served the alleged prison terms.

Wilson was sentenced on February 15, 2011.   The trial court indicated that it had read and considered the probation report and that, “based upon all of the facts and circumstances ․ presented during the course of the trial and considering the circumstances [in the report], the high term of three years in state prison is appropriate based solely upon the viciousness of the attack on the victim Mr. Robinson and how that was done without warning from behind․”  [¶] “In addition to that, there are four individual ․ Code section 667.5, subdivision (b), priors.   And each one of them are to be one-year sentences consecutive to each other and consecutive to the base term of three years on the attempt[ed] robbery.   And that is due to the continuing course of criminality despite multiple state prison commitments ․, the increasing seriousness of the offenses and ․ that there are [no] cognizable circumstances in mitigation here.”

Wilson was awarded presentence custody credit for a total of 203 days.   He was ordered to pay a $2,000 restitution fine pursuant to section 1202.4, subdivision (b) and a stayed $2,000 restitution fine pursuant to section 1202.45.

Wilson filed a timely notice of appeal on February 15, 2011.

This court appointed counsel to represent Wilson on appeal on June 1, 2011.

CONTENTIONS

After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice filed August 4, 2011, the clerk of this court advised Wilson to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider.   On August 22, 2011, Wilson filed a supplemental brief.   Although much of the brief is unintelligible, Wilson seems to be arguing that (1) the trial court erred by conducting an en mass voir dire;  (2) the witnesses against him were not credible and caused him “extreme prejudice;” (3) his counsel was ineffective and violated the “Sixth and [F]ourteenth Amendments['] ․ due process [right to] a fair [trial]” and arraignment;  and (4) he suffered “prejudice.”

REVIEW ON APPEAL

Initially, that portion of the jury voir dire which was transcribed indicates that, when there was a question regarding the ability of a potential juror to be impartial, the trial court questioned that person individually.   Wilson was not prejudiced by an en mass questioning of a group of potential jurors.

Second, it cannot be said that the witnesses who testified against Wilson committed perjury.   Whether a witness is telling the truth is a question for the jury and this particular jury chose to believe Robinson and Deputy Barragan.   Wilson was not caused “extreme prejudice” by that choice.

Wilson maintains he was denied the effective assistance of counsel.   In order to demonstrate ineffective assistance of counsel Wilson must show counsel's representation was so deficient as to undermine confidence in the resulting judgment.  “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”  (Strickland v. Washington (1984) 466 U.S. 668, 686;  accord, People v. Ledesma (1987) 43 Cal.3d 171, 215.)   A party claiming ineffective assistance must first demonstrate that his counsel's performance was deficient.  (Strickland, at p. 687;  Ledesma, at p. 216.)   In reviewing counsel's performance, we “exercise deferential scrutiny.”  (Ledesma, at p. 216;  accord, Strickland, at p. 691.)   To that end, it is up to Wilson to show his counsel's performance was deficient because his “ ‘representation fell below an objective standard of reasonableness․'  “ (People v. Lucas (1995) 12 Cal.4th 415, 436.)

Here, a reading of the trial transcript indicates that defense counsel properly cross-examined the witnesses.   When there became an issue that only Wilson could decide, counsel conferred with the defendant before making a decision.   Wilson cannot claim that his counsel's performance was deficient.

Finally Wilson, relying on Berger v. United States (1935) 295 U.S. 78, indicates he “would like [this] court to examine the credibility of the ․ witness[es] used by [the] prosecution.”   In Berger, the defendant was charged with participating in a conspiracy to “utter counterfeit notes purporting to be issued by designated federal reserve banks.”  (Id. at pp. 79–80.)   However, due to evidence presented by the prosecutor of a second, disconnected conspiracy testified to by the witnesses, Berger was found guilty, not only of the primary conspiracy with which he had been charged, but a second conspiracy as well.   The appellate court determined that Berger had been wrongfully found guilty of the second conspiracy because, initially, he had not been properly charged with it, and second,”[d]uring the trial, the United States attorney who prosecuted the case for the government was guilty of misconduct, both in connection with his cross-examination of witnesses and in his argument to the jury[.]”  (Id. at p. 80.)

Wilson's case is nothing like Berger's.   The information clearly charged Wilson with one count of attempted second degree robbery and alleged he had suffered prior convictions and prison terms.   In addition, Wilson presented no witnesses for the prosecutor to cross-examine.   Third, both Robinson's and Barragan's testimony is straightforward and consistent.   Finally, during their arguments to the jury, both counsel were reasonable.   For example, during his closing argument to the jury, Wilson's counsel stated:  “Altercation happens.   Was it because––a reasonable conclusion is Mr. Wilson was mistaken about what was going on?   Number two, is it reasonable that Mr. Robinson and Mr. Wilson were both mistaken about what was happening?   Or was there no mistake and both were correct?   Was it an auto theft or an attempted robbery?  [¶] There's another set of [possible] facts.   Wilson goes and waits––my client goes to the sheriff's station and waits.   There's a reasonable conclusion as to why he did that:  One, to turn himself in;  Two, ․ to report an auto theft.   If they're reasonable, ladies and gentlemen, you've got to follow the one that's most––that points to innocence if you find those alternative conclusions to be reasonable.”

We have examined the entire record and are satisfied appellate counsel has complied fully with counsel's responsibilities.  (Smith v. Robbins (2000) 528 U.S. 259, 278–284;  People v. Wende (1979) 25 Cal.3d 436, 443.)

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.

KITCHING, J. ALDRICH, J.