P. v. Calimon
Filed 1/22/13 P.
v. Calimon CA2/5
OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL
CALIMON,
Defendant and Appellant.
B241750
(Los Angeles County
Super. Ct. No.
NA090840)
APPEAL
from a judgment of the Superior Court of
County.
Laura L. Laesecke, Judge. Affirmed.
Michele
A. Douglass, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent.
_______________
After a jury trial, defendant and
appellant Michael Calimon was convicted of one count of violation of Penal Code
section 211, robbery. In a
true the allegations that appellant had suffered four prior convictions within
the meaning of the "Three Strikes" law (Pen. Code, §§ 1170.12, subds.
(a)-(d), 667, subds. (b)-(i)), one prior serious felony conviction within the
meaning of section 667, subdivision (a), and had served one prior prison term
within the meaning of section 667.5, subdivision (b).
The
trial court struck three of the four Three Strikes convictions and sentenced
appellant to a total of 16 years in state
prison. We appointed counsel to
represent him on appeal.
After
examination of the record, counsel filed an
acknowledgment that he had been unable to find any arguable issues. We, and counsel, advised appellant that he
could submit a supplemental brief in
his own behalf.
Appellant
has submitted such a brief. We consider
each of his contentions, and, finding no error, affirm.
Facts
The
crime occurred on November 26, 2011. On that date, a cashier at Joe's Liquor in Long Beach saw
appellant put two cans of beer into his pocket.
The cashier told him to take them out.
Appellant ran out of the store and got into the driver's side of a white
car. When the cashier approached the
car, appellant said, "back up. I
got the gun." The passenger then
reached into his waistband. The cashier
was frightened. He went back into the
store and recorded the license plate of the car. Appellant was apprehended and identified.
The
cashier also testified that about two weeks earlier, he saw appellant in the
store. Appellant picked up a bottle of
liquor and tried to put it in his jacket, but the cashier told him to put it
back, and took the bottle from his hand. Appellant said, "this is my hood. You have to watch out," then left the
store.
Discussion
Appellant
first contends that the court did not respond to his request for a
When appellant made the request, after the jury verdict, but before the
trial on the priors, the court held a hearing.
We have reviewed the transcript of that hearing, and find no abuse of
discretion in the ruling. (People v.
Earp (1999) 20 Cal.4th 826, 876.)
Appellant
next contends that the evidence concerning the incident two weeks before the
crime should not have been admitted.
Defense counsel unsuccessfully sought to have this evidence
excluded. We see no abuse of discretion
(People v. Rogers (2006) 39 Cal.4th
826, 862) in the court's decision to admit this evidence, which showed both
intent and common plan or scheme. (Evid.
Code, § 1101, subd. (b).)
Nor
do we find grounds for reversal in appellant's ineffective assistance of
counsel claims. He finds ineffective
assistance of counsel in that counsel did not present the 911 tape to the jury,
did not call the passenger in the car, did not "put [appellant] on the
stand," and did not obtain the store's video.
Appellant
has not demonstrated that the representation fell below an objective standard
of reasonableness under prevailing professional
norms or that there is a reasonable probability that, but for the matters
of which he now complains, the outcome would have been different. (People
v. Mincey (1992) 2 Cal.4th 408, 449.)
As
to the video, the evidence was that both a police detective and the defense
investigator inquired of the store owner concerning the video, and were told
that the events at issue here were not recorded because the system was not
functioning. As to the fact that
appellant did not testify, we note that after defense counsel informed the
court that appellant did not wish to testify, the court personally informed
appellant that he had the right to testify.
The court asked appellant, "is it your choice not to testify
today?" Appellant answered,
"yes."
As
to the contentions concerning failure to present the 911 tape or call the
passenger as a witness, counsel could have had many legitimate reasons for
those tactical decisions.
Finally,
appellant contends that one of his prior convictions was the result of a plea
he entered into before the Three Strikes law was enacted, and for that reason
the conviction should not have been considered in this case. This is a contention that the Three Strikes
law is a prohibited ex post facto law, a contention which has been rejected by
the California Supreme Court. (
v. Helms (1997) 15 Cal.4th 608, 614–616.)
Disposition
The
judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG,
Acting P. J.
We concur:
MOSK, J.
KRIEGLER, J.
