P. v. Kelly
Filed 12/18/13 P.
v. Kelly CA2/8
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
THE PEOPLE,
Plaintiff and
Respondent,
v.
EDWIN KELLY,
Defendant and
Appellant.
B249262
(Los
Angeles County
Super. Ct. No. TA124642)
APPEAL from a judgment of the
Craig C. Kling, under appointment by
the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and
Respondent.
* * * * * * * * * *
Defendant
and appellant Edwin Kelly appeals from the judgment of conviction following a
jury trial. We affirm.
On
October 31,
2012, defendant was charged with one count
of second degree robbery (Pen. Code, § 211).
suffered several prior convictions and served prior prison terms within the
meaning of section 667.5, subdivision (b).
The information alleged that on August 24, 2012,
defendant and his codefendant Saladin Minor
fear, personal property from victim B.R.
At his arraignment, defendant pled not guilty.
The
case proceeded to a jury trial in May 2013.
During the trial, the victim, B.R., attested to the facts and
circumstances of the incident in which defendant, codefendant Minor, and one
other unidentified male, rear-ended the victim’s car. B.R. identified defendant in court, and
explained that after he got out from the front passenger seat while she was
trying to exchange information
with Minor (who was the driver), defendant walked up to her car and grabbed her
purse out of the vehicle. She described
him as wearing a blue plaid shirt. She
said defendant and Minor then ran back to their car and got in. The third male ran off and did not go back to
the car. Both Minor and defendant tried
to hit the victim as she attempted to retrieve her purse from their
vehicle. Minor attempted to drive off
while B.R. was still reaching into their car, and crashed into a semi-truck,
injuring B.R.
Los
Angeles Police Department (LAPD) patrol officer Ryan Lozano and his partner, officer
Arthur Gonzalez, testified to witnessing a portion of the incident. They came upon the scene, witnessed the
struggle between B.R., Minor and defendant, the crash with the semi-truck, and then
saw defendant get out of the front passenger seat and attempt to flee.
LAPD
officer Gilberto Tovalin also testified to responding to the scene of the
incident and apprehending defendant, who had been wearing a blue shirt and
black shorts. Defendant was located
hiding nearby, with his shirt on the ground next to him. He was placed under
arrest at that time.
Erik
Rivera, the driver of the semi-truck, testified during the trial and identified
defendant as a participant in the robbery.
Video
from a nearby store’s security camera was played for the jury, as were segments
of video from the responding officers’ dashboard cameras.
Defense
counsel argued to the jury, both in opening statement and in closing argument,
that the evidence showed defendant was not the one who took the purse out of
the car, but rather, it was the third male (wearing a white T-shirt and black
shorts) who did so and eluded capture by the police. Defendant testified in his own defense that
he did not get out of the vehicle after the collision and did not take B.R.’s
purse from her car. He said he did not
know that a robbery was being planned, but that he had simply asked codefendant
Minor for a ride to a friend’s home, and that he attempted to flee because he
panicked and feared going back to jail. Defense
counsel explained the defense version that the video supported defendant’s
testimony he had not gotten out of the vehicle after the accident.
The jury found
defendant guilty of second degree robbery.
Defendant waived his right to a jury trial on his prior convictions. At the sentencing hearing, defendant admitted
two prior prison term convictions. The
court sentenced defendant to a state prison term of six years, consisting of
the upper term of five years on the robbery count, plus one year for one prior
prison term. The court exercised its
discretion under section 1385 to strike the other prison term prior. Various fines and fees were imposed, and
defendant was awarded 610 days of precustody credits.
Defendant
filed a timely notice of appeal. We
appointed appellate counsel to represent defendant. Appellate counsel filed a brief pursuant to People
v. Wende (1979) 25 Cal.3d 436 (Wende)
in which no issues were raised. The
brief included a declaration from counsel that he reviewed the record and sent
a letter to defendant explaining his evaluation of the record. Counsel further declared he advised defendant
of his right, under Wende, to submit
a supplemental brief within 30 days.
On November 14, 2013, defendant submitted a two-page handwritten letter brief. Defendant does not identify any
enhanced version of the security videotape of the incident would show that he
did not take the victim’s purse out of her car.
Defendant contends that if an enhanced version was obtained, the clothes
worn by the individual taking the purse could be better seen and it would reveal
that it was not defendant, who was wearing a blue plaid shirt on the day of the
incident, and not a white T-shirt as reflected in the video.
The jury was
provided the videotapes to view in the jury room during deliberations. The jury was able to hear and assess the
precise claim defendant now urges would be shown by an enhanced version of the
videotape, specifically that defendant was not a participant in the robbery of
B.R. That claim was rejected by the
jury. Defendant has not shown a request
to submit an enhanced version of the videotape evidence (assuming that could be
accomplished) was made and denied, or whether admission of such evidence would
reasonably result in a more favorable outcome to defendant. (Cal. Const., art.
VI, § 13.)
We have examined
the entire record and are satisfied that appointed counsel fully complied with
his responsibilities in assessing whether or not any colorable appellate issues
exist. We conclude there are no arguable
appellate issues. (People v. Kelly (2006) 40 Cal.4th 106; Wende, supra, 25 Cal.3d
436.)
The judgment of conviction is
affirmed.
GRIMES,
J.
We concur:
BIGELOW, P. J.
RUBIN, J.
name="_ftn1" title="">[1] All further undesignated section references are to the
Penal Code.
name="_ftn2" title="">[2] Codefendant Minor is not a party to this appeal.
