Filed 12/21/18 P. v. Sells CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

A jury convicted defendant and appellant Charles Levon Sells (appellant) of robbery. Appellant’s counsel has raised no issue on appeal and asks this court for an independent review of the record to determine whether there are any arguable issues. (See Anders v. California (1967) 386 U.S. 738; People v. Wende (1979) 25 Cal.3d 436.) Appellant has not filed a supplemental brief. We affirm.

Procedural Background

In April 2016, appellant was charged by information with robbery (Pen. Code § 211).[1] The information also alleged a prior prison term enhancement (§ 667.5, subd. (b)).

Before trial, appellant unsuccessfully moved to exclude a statement to the police at the time of his arrest about possessing a toy gun and the victim’s identification of his voice. A jury found appellant guilty and appellant admitted the section 667.5, subdivision (b) prior prison term allegation.

Appellant unsuccessfully moved for a new trial, and the trial court sentenced appellant to six years in prison.

factual Background

Kristy M. is a manager at a cigarettes store in Lake County. On February 7, 2016, she was working alone when she saw someone come through the store’s back door. She went to the back to investigate and encountered a man who pointed a gun at her face. He wore gloves and a mask that hid his face except for his eyes. The man told Kristy M. to go to the register, put the money in a bag, and bring the bag back to him. Kristy M. filled a store bag with approximately $1,100 from the register and signed credit card receipts with the store information printed on them.

The man took the bag, thanked Kristy M., and told her not to call the police until he had left. He went out the back door, put his gun into his pants, took off his mask, and went over a fence. Kristy M. called the police. She had heard the man speak for 30 seconds to a minute during the robbery, and she was paying close attention to him.

Later the day of the robbery, a police officer discovered gloves, a mask, over $900, receipts from the cigarette store, and a realistic-looking BB pistol from a vacant lot not far from the cigarette store. Kristy M. confirmed the items were from the robbery. The next day, a neighbor showed the police cell phone video depicting a blue Chevy and two people walking around the vacant lot and looking in the area where the items from the robbery were discovered. An officer was able to identify the people in the video as Cathleen R. and Arnold A. They were detained in the blue Chevy at a nearby gas station.

The day after the robbery, Kristy M. noticed police activity at a gas station across the street from the cigarette store. She told the police officers she was working during the cigarette store robbery and the officers asked her to listen to the voice of a man they had detained to determine whether he sounded like the robber. Kristy M. stood with her back to the patrol car and the detained man said, “Put the money in the bag.” The man’s voice sounded “completely different” from that of the robber. The man subjected to the voice identification was Arnold A.

At trial, Arnold A. testified that on February 8, 2016, he and his sister Cathleen R. gave appellant, who was a friend, a ride to a location near the cigarettes store. Appellant asked him to retrieve something stashed underneath a shed. When Arnold A. could not find anything, appellant got “very agitated and nervous” and they left. Arnold A. was detained at the gas station but then released. After Arnold A. was released, appellant told him that “they couldn’t prove anything because he had a mask and glove.”

At approximately 6:30 p.m. the day after the robbery, police officers went to

a residence in Clearlake and found appellant lying on a bed. An officer placed appellant in handcuffs and asked if appellant had any weapons underneath him. Appellant said no, and the officer said “you were armed with a gun the other day.” Appellant responded, “[I]t was a toy.”

On February 9, 2016, the police asked Kristy M. to come to the police department because they had a suspect in custody and wanted her to identify his voice. The police put her in a room and told her she was not required to identify anyone and it was “just as important to free the innocent as it is to commit the guilty.” Through a monitor, Kristy M. heard a man’s voice spelling a name. She could not see the man, but she knew it was the robber’s voice. She was one hundred percent sure the voice was the same as the robber’s voice. She testified it was “[e]xactly the same. The tone of his voice, the low, the gruff, it’s all the same.”

Police officers advised appellant of his Miranda rights and questioned him about the robbery and his use of heroin. Appellant denied participating in the robbery but admitted supplying the items that were used. He said they were supposed to be used in “marijuana deals,” which the interrogating officer understood to mean armed robbery of marijuana. Forensic testing showed appellant was the major DNA contributor to the gloves and ruled out Arnold A. as the major contributor.

An expert witness for the defense testified that “voice identification is much less accurate than face identification.” Great stress during the first encounter with a voice makes correct identification less likely. “[S]howup” voice identifications are less reliable than “lineups.”

Discussion

We have reviewed the entire record and have found no arguable appellate issues. There were no prejudicial errors in the admission of evidence at trial. In particular, any error in the admission of appellant’s statement at the time of his arrest about possessing a toy gun was harmless, and the trial court did not err in admitting the victim’s identification of appellant’s voice.

There were no prejudicial errors in the court’s instructions to the jury regarding the elements of the charged offenses. Substantial evidence supports the jury’s verdict.

The trial court’s sentence and fines were proper.

Appellate counsel advised appellant of his right to file a supplemental brief to bring to this court’s attention any issue he believes deserves review. (See People v. Kelly (2006) 40 Cal.4th 106.) Appellant did not file a supplemental brief. There are no legal issues that require further briefing.

Disposition

The judgment is affirmed.

SIMONS, Acting P.J.

We concur.

NEEDHAM, J.

BRUINIERS, J.*

(A152803)