THE PEOPLE v. JESUS ALVAREZ (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant and appellant Jesus Alvarez was convicted by jury of second degree robbery in violation of Penal Code section 211.¹  Defendant admitted suffering a prior conviction under sections 1170.12, subdivisions (a)-(d) and 667, subdivisions (b)-(i) (the three strikes law) and section 667, subdivision (a).   The trial court sentenced defendant to nine years in state prison.

After defendant filed a timely notice of appeal, this court appointed counsel to represent defendant on appeal.   On February10, 2010, appointed counsel filed a brief raising no appellate issues and requested this court to independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436.

Defendant was advised by letter from this court, dated February 15, 2011, of his right to file a supplemental brief or letter within 30 days.   On April 15, 2011, defendant filed a one page letter arguing the victim did not provide any evidence as to what was taken from him.   This court authorized late filing of the letter.

FACTS

As Omar Hinds was seated in the driver's seat of a car at the drive-thru at a McDonald's restaurant on August 21, 2009, defendant opened the car door, struck Hinds in the face, took his cell phone, and ordered Hinds out of the car.   Hinds instead put the car in reverse and drove off without his phone.   Hinds later identified defendant's photograph as that of the perpetrator.   The incident was witnessed by Jonathan Villalta, who was the passenger in the car with Hinds.   Four different angles of video from the time of the incident were played for the jury.

Defendant was arrested on August 25, 2009, at his apartment, which was located approximately 300 feet from the McDonald's restaurant.   A still photo captured from the McDonald's video was shown to the daughter of defendant's girlfriend, who identified defendant as the person in the photo.   Defendant had been issued a citation for drinking in public in front of the McDonald's shortly before the robbery.   The description of the robbery suspect matched defendant's description.

DISCUSSION

We interpret defendant's supplemental letter brief to challenge the sufficiency of the evidence.  “When we review a challenge to the sufficiency of the evidence to support a conviction we apply the substantial evidence standard.   Under that standard the reviewing court examines the entire record to determine whether or not there is substantial evidence from which a reasonable jury could find beyond a reasonable doubt that the crime has been committed.   In reviewing that evidence the appellate court does not make credibility determinations and draws all reasonable inferences in favor of the trial court's decision.   We do not weigh the evidence but rather ask whether there is sufficient reasonable credible evidence of solid value that would support the conviction.  (People v. Johnson (1980) 26 Cal.3d 557, 576–578.)”  (People v. Russell (2010) 187 Cal.App.4th 981, 987–988.)

Contrary to defendant's argument, Hinds did testify that his cell phone was taken.   His testimony was corroborated by Villalta.   The testimony of these two witnesses constitutes substantial evidence of what property was taken in the robbery.

We have also conducted an independent examination of the record as requested by appointed counsel.   There are no arguable appellate issues.  (Smith v. Robbins (2000) 528 U.S. 259.)

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.

FOOTNOTES

FN1. All further statutory references are to the Penal Code..  FN1. All further statutory references are to the Penal Code.