P. v. Draper



















Filed 1/3/13 P.
v. Draper CA2/1

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>NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 ONE




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THE PEOPLE, Plaintiff and Respondent, v. CORNELIUS MARCUS DRAPER, Defendant and Appellant.

B239032 (Los Angeles County Super. Ct. No. BA372018)

APPEAL
from a judgment of the Superior court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. Craig E. Veals, Judge. Affirmed.

Cornelius
Marcus Draper, in pro. per.; and Michele A. Douglass, under appointment by the
Court of Appeal, for Defendant and Appellant.

No
appearance for Plaintiff and Respondent.







____________________________



FACTUAL AND PROCEDURAL BACKGROUND

On May 27, 2010, appellant Cornelius Draper, armed with a
gun, confronted Miguel Deisita and demanded that he give him his cell phone and
car. Deisita refused to hand over the
phone but moved away from his car.
Appellant got in the car and drove away.
He was later chased by police, but escaped. He was eventually arrested.

Appellant
was charged with one count of carjacking
with the use of a firearm (Pen. Code, §§ 215, subd. (a), 12022.53, subd.
(b)),href="#_ftn1" name="_ftnref1"
title="">^[1] one count of href="http://www.mcmillanlaw.com/">attempted robbery (§ 211), and two
counts of possession of a firearm by a felon (former § 12021, subd. (a)(1)),
and it was alleged that he had suffered one prior serious felony conviction and
a prior strike conviction and had served a prior prison term (§§ 667, subds.
(a)(1) & (b), 667.5, subd. (b); 1170.12, subds. (a)-(d)).

When
the jury was unable to reach a verdict, a mistrial was declared and appellant
was retried. At the second trial,
appellant represented himself and was provided stand-by counsel. He filed motions
for appointment of an eyewitness identification expert (granted),
production of trial transcripts (denied), transcription analysis (granted),
appointment of a handwriting expert (granted); appointment of a fingerprint
expert (denied), suppression of identification evidence (denied), production of
discovery (granted), dismissal in the interest of justice (denied), recusal of
the district attorney’s office (denied), substitution of standby counsel
(denied), and reconsideration of the suppression motion (denied).

Appellant
also filed two motions for Pitchesshref="#_ftn2" name="_ftnref2" title="">>^>[2] discovery,
seeking the personnel files of Los Angeles Sheriff’s Deputy Marco Magana and
Los Angeles Police Detective Larsen Trevor, specifically pertaining to the
officers’ history of use of excessive force, violation of suspects’ rights, and
acts of dishonesty or moral turpitude.
The motions were denied.

At trial,
appellant’s motion to exclude testimony about a bullet found near his car was
denied.

Appellant’s
defense was alibi: He was with friends
and relatives when the carjacking occurred.

During trial, juror No. 1
submitted a note to the court regarding possible misconduct by juror No.
7. After a hearing, the court found no
misconduct had occurred.

The jury convicted appellant
of carjacking and two counts of firearm possession, but acquitted him on the
attempted robbery count. It found the
firearm allegations true. The court
later found the prior conviction allegations to be true.

In a hearing on January 24, 2012, appellant contended the
verdict form on count one, which contained a finding that he had used a gun
during the carjacking, was not the same form the jurors returned, which
contained no firearm allegation finding.
The trial court disagreed.
Appellant also sought leave to file a motion for new trial and requested
a continuance to permit him to do so.
The trial court denied the request.

At sentencing, appellant
again contended the verdict form for count one was not the same as was returned
by jurors and asked to see the original form.
The trial court denied his request to see the original verdict form but
showed him a one-sided copy of it—with the jury foreperson’s name
redacted. The court also reviewed the
reporter’s transcript and determined that the verdict form in hand was the same
as was originally returned by the jury.
Appellant was not satisfied with the copy because it showed only the
front of the form, not the back, where he and the prosecutor had placed their
initials. The trial court denied his
request for further investigation into the matter.

Appellant was sentenced to
25 years in prison, comprising the middle term of five years on count one,
doubled, plus ten years for the firearm use allegation, plus five years for the
serious felony prior enhancement. The
court imposed the middle term of three years on counts 3 and 4,
concurrent. A $200 restitution fine was
imposed and a matching parole fine, which was stayed. Appellant was given 665 days custody credit.

Appellant filed a timely
appeal. We appointed counsel to
represent him on appeal, and after examining the record counsel filed an
opening brief raising no issues and asking this court to review the record
independently. On October 5, 2012, we advised appellant he
had 30 days within which to personally submit any contentions or issues he
wished us to consider.

Appellant filed a supplemental
letter brief in which he contends (1) the verdict form containing a firearm
finding on count one was not the same form as was returned by the jury, and (2)
insufficient evidence supported the carjacking conviction. Appellant has requested that the verdict form
be filed in this court. We granted the
request, and the form was filed under seal with instructions to permit
appellant’s counsel to see it but not make a copy. Appellant contends his counsel has now seen
the form, but failed to inform him of the contents.

DISCUSSION

A. The Jury Found the Firearm Allegation to be True

Appellant contends the trial
court imposed a firearm enhancement even though the jury made no finding on the
firearm allegation. He argues the true
verdict form returned by the jury, which he and the prosecutor had initialed on
the back, contained no firearm finding.

We have reviewed the verdict
form. On the front it states, in
pertinent part: “We further find the
allegation that in the commission of the above offense, the defendant
personally used a firearm, to wit: a handgun, within the meaning of PENAL CODE
SECTION 12022.53(b) and 1203.06(a)(1) to be TRUE.” The back of the form bears the initials “CD”
and “SAM” (the prosecutor’s initials).
The verdict form indicates the jury found the firearm allegation to be
true.

Moreover, during sentencing
the trial court read from the August 18, 2011 minute order, which quotes the
verdict form verbatim, to the same effect.
The trial court also read from the reporter transcript of the August 18,
2011 proceedings, which reflected that the verdict form, including the firearm
finding, was read in open court.
Finally, the trial judge consulted his own notes, which comported with
the transcript, and personally remembered that the firearm allegation had been
found true. The trial court concluded,
as do we, that the record “beyond question points out that the jury found that
that special allegation was true.”

B. Sufficiency of Evidence

Appellant
contends insufficient evidence
supported the carjacking conviction because the evidence showed only that he
took Deisita’s vehicle, not that he took it from his person or immediate
presence or by means of force or fear.
We disagree.

“‘Carjacking’
is the felonious taking of a motor vehicle in the possession of another, from
his or her person or immediate presence, . . . against his or
her will and with the intent to either permanently or temporarily deprive the
person in possession of the motor vehicle of his or her possession,
accomplished by means of force or fear.”
(§ 215, subd. (a).)

Appellant argues the
original police report indicated Deisita told police appellant had demanded
only his cell phone, and was later altered to indicate he also demanded Deisita’s
car. This indicates he did not demand
the car when he confronted Deisita, which implies he did not take it from his
person or by means of force or fear.
Appellant argues Deisita’s testimony provides confirmation. When Deisita was asked by the prosecutor
whether appellant had said anything to him during the robbery, appellant
argues, Deisita said only that appellant had demanded his phone, and could not
remember whether appellant demanded the car too. We conclude sufficient evidence supports the
conviction.

Deisita was questioned by
the prosecutor as follows:

“Q Did the defendant say anything to you?

“A Yes.

“Q What did he say to you?

“A He was going to shoot me.

“Q What else did he say that—what else did
he say to you? Did he just say, ‘I’m
going to shoot you’?

“A He told me to give up my phone.

“Q Did you give him your phone?

“A No.

“Q Did he say anything else to you?

“A I can’t remember.

“Q Did the defendant say anything about the
car?

“A I can’t remember.

“Q Do you remember if he said, “Give me the
car or I will shoot you?’

“DEFENDANT
DRAPER: Objection, Your Honor; leading.

“THE
COURT: Sustained.

“Q (BY MR. MARCUS Do you remember telling the police that night—well, did
you talk to the police that night?

“A Yes.

“Q Did you tell the police everything that
you could remember as best you could remember it?

“A Yes.

“Q Did you try to give the police as
accurate a description of what had happened to you that night?

“A Yes.

“Q Is it fair to say that your recollection
of what happened that night was better since it was that night than it was
sitting here today a year later?

“A Yes.

“Q Do you remember telling the police that
night that the defendant said to you, ‘Give me the car or I will shoot you
right now?’

“A Yes.

DEFENDANT
DRAPER: Objection, Your Honor;
leading.

THE
COURT: I’ll overrule.

“Q (BY MR. MARCUS When the defendant said that, what did you do?

“A The keys were in the ignition so, I
mean, I just got out and he just told me to get away, to get out of here.

“Q I’m sorry?

“A He told me to, ‘Leave or I’ll shoot
you.’

“Q The defendant said, ‘Leave or I’ll shoot
you?’

“A Yeah, to get away.

“Q When he said, ‘Leave or I’ll shoot you,’
were you afraid that he would shoot you?

“A Yes.

“Q So what did you do?

“A So I left.

“Q When the defendant said, ‘Leave or I’ll
shoot you,’ did he still have the gun?

“A Yes.

“Q Was he still pointing the gun at you?

“A Yes.

“Q Where at you was he pointing the gun?

“A Well, from my face it went down to my
body, towards my chest.

“Q The defendant lowered the gun from your
face to your chest?

“A Yes.

“Q And that was when he said, ‘Leave or
I’ll shoot you?’

“A Yes.

“Q How was it that you got out of the
way? How was it that you left?

“A I just stepped away toward the back of
my car.

“Q Towards the rear of the car?

“A Yes.

“Q Back towards the trunk?

“A Yes.”

The record
reflects appellant demanded that Deisita give him the car. Even if appellant had said nothing about the
car, as he argues (but the record contradicts), it is undisputed that he
pointed a gun at Deisita while they were near the front of the vehicle, which
caused Deisita to fear for his life and cede control of the vehicle, which
appellant then took. A reasonable jury
could conclude from this evidence that appellant took the vehicle from
Deisita’s immediate presence, against his will, by means of force or fear. Appellant was thus properly convicted of
carjacking.

CONCLUSION

We have examined
the entire record and are satisfied that appellant’s counsel has fully complied
with the responsibilities set forth in People
v. Kelly (2006) 40 Cal.4th 106, 109-110 and People v. Wende (1979) 25 Cal.3d 436, 441. No arguable issues exist.

DISPOSITION

The judgment is
affirmed.

NOT TO BE
PUBLISHED.





CHANEY,
J.



We concur:







ROTHSCHILD, Acting P. J.







JOHNSON,
J.