P. v. Wesley

Filed 12/16/08 P. v. Wesley CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

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A jury convicted defendant Sean Batiste Wesley of second degree robbery. (Pen. Code,  211, 212.5, subd. (c).)^[1] He admitted having a prior serious felony conviction. ( 667, subd. (a).) Defendant was sentenced to state prison for eight years; awarded 242 days of custody credit and 36 days of conduct credit; and ordered to pay a $220 restitution fine ( 1202.4, subd. (b)), a $220 restitution fine suspended unless parole is revoked ( 1202.45), and a $20 court security fee ( 1465.8). Defendant appeals.

FACTUAL BACKGROUND

On July 19, 2007, Jesus Martinez-Lopez was driven from his worksite to the Capri Motel in Stockton. As he walked to the motel office, former codefendant Kathleen Helsby asked him for a cigarette and he replied that he did not have one. Helsby told Martinez-Lopez to wait. Suddenly, defendant approached him, threatened him, and told him to give defendant his money. Helsby told Martinez-Lopez to give defendant the money, because hes got a piece. Martinez-Lopez did not see a gun but believed that defendant had one. Defendant then grabbed Martinez-Lopezs wallet from his rear pants pocket. The wallet contained four $20 bills, two $10 bills, one $5 bill, and a couple of $1 bills. At that moment, Martinez-Lopezs cell phone rang and defendant took the phone from him.

Martinez-Lopezs driver, Onesimo Garrido, saw the altercation and ran to help Martinez-Lopez. Another former codefendant, Robert Alan McCarty,^[2]came up to Garrido and hit his nose, causing it to bleed. Martinez-Lopez started to fight back, exchanging blows with defendant.

Helsby, who was then holding Martinez-Lopezs wallet and cell phone, took the money out of the wallet and threw the wallet on the ground where Martinez-Lopez picked it up. Martinez-Lopez and Garrido left the scene and telephoned the police.

Stockton Police Officer Luis Talamantes arrived at the Capri Motel to investigate the robbery. He met other officers who had already detained defendant, Helsby, McCarty, and Catana Owens in room 118. Talamantes met with both victims, who appeared to have been beaten up. Martinez-Lopez described the attack and the attacker, and he provided the denominations of the stolen money.

Police officers searched defendant in the motel room. In his pants pockets were four $20 bills, two $10 bills, and two $1 bills. At a field show-up conducted by Officer Talamantes, Martinez-Lopez and Garrido separately identified defendant as the person who had beaten and robbed Martinez-Lopez. Martinez-Lopez also identified Helsby as the woman involved in the incident, and Garrido identified McCarty as his assailant.

At trial, both Martinez-Lopez and Garrido denied that they approached Helsby to engage her in an act of prostitution.

Catana Owens testified for the defense that she resided with defendant at the motel at the time of the incident. She knew Helsby from the motel and knew that Helsby was a prostitute, because she had told her so.

Owens testified that defendant left the room to use a downstairs telephone and then came right back. At another point in the evening, Owens heard a commotion in the parking lot. She looked out and saw Garrido scuffling with McCarty. Thereafter, Helsby and McCarty came up to the room. Both were excited and acting really . . . scared. They told Owens that those Mexican guys had tried to rob them and a fight ensued.

DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.

Our review discloses two minor sentencing errors. First, the trial court did not orally pronounce the mandatory $20 court security fee. We shall modify the judgment to include this fee. The clerks minutes and the abstract of judgment fortuitously include that fee, so no correction of those documents is required.

Second, defendant is entitled to an additional day of custody credit. His incarceration from July 19, 2007, through his sentencing on March 17, 2008, entitles him to 243 days of custody credit. We shall modify the judgment accordingly. This modification does not entitle defendant to any additional conduct credit.^[3]

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is modified to impose a $20 court security fee and to award defendant 243 days of custody credit. As so modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.

BUTZ , J.

We concur:

SCOTLAND , P. J.

HULL, J.

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^[1] Undesignated statutory references are to the Penal Code.

^[2] Defendant and codefendants Helsby and McCarty were jointly charged in this matter. Helsby and McCarty resolved their cases prior to trial. Neither is a party to this appeal.

^[3] These issues of sentencing error seem noncontroversial and the court has addressed them summarily in this opinion, in the interest of judicial economy. Any party aggrieved by this procedure should petition for rehearing. (Gov. Code,  68081.)