Filed 12/16/19 P. v. Martinez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

CARLOS MARTINEZ,

Defendant and Appellant.

G057768

(Super. Ct. No. 18WF2034)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Maria D. Hernandez, Judge. Affirmed.

David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *

A jury found defendant Carlos Martinez guilty of second-degree robbery. (Pen. Code, §§ 211, 212.5, subd. (c).) In a bifurcated court trial, the court found it to be true that defendant was ineligible for probation under section 1203, subdivision (k) because he committed a violent or serious felony while on felony probation in a different case. The court sentenced defendant to a state prison term of two years (the low term). (§ 213, subd. (a)(B)((2).)

Defendant timely filed a notice of appeal and we appointed counsel to represent him. Counsel did not argue against defendant but advised the court he was unable to find an issue to argue on defendant’s behalf. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was given the opportunity to file written argument on his own behalf, but he has not done so.

We have examined the entire record and have not found an arguable issue on appeal. Accordingly, we affirm the judgment.

FACTS

Following our usual standard of review on appeal, we recite the facts “in the light most favorable to the judgment . . . .” (People v. Johnson (1980) 26 Cal.3d 557, 578.)

On September 8, 2018, at about 9:45 p.m., R.M. was sitting on a bus-stop bench in the City of Garden Grove. The buses were not running anymore that evening, so R.M. was using her cell phone, trying to reach a friend or her husband to pick her up. In addition to her cell phone, R.M had a black purse containing cigarettes, some jewelry, and a charger for her cell phone. A white mini van pulled up next to the bus stop and a woman R.M. did not know got out of the van. The woman started walking toward R.M. and then grabbed R.M’s purse. A struggle over the purse ensued and R.M. heard a man in the van yell “hit her, hit her.” While struggling with the woman, R.M. lost her balance and both women fell down. R.M. let go of the purse to catch herself. The woman got up with the purse and started walking rapidly to the van. R.M. followed the woman and grabbed the back of her shirt and ripped it as the woman climbed into the passenger side of the van. R.M. grabbed onto the van as it accelerated, but she fell off and tumbled to the curb.

A passerby motorist saw the white van with a door missing on the driver’s side as it accelerated with a woman (R.M.) being dragged along. The passerby saw R.M. falling to the ground, and tried unsuccessfully to follow the van. Meanwhile, R.M. called 911, and within minutes a patrolling officer saw the vehicle described in the dispatch. The officer pulled the van over. A male was driving the van and a female was in the passenger seat. During the officer’s testimony at trial he identified defendant as the person driving the van when it was stopped. Another officer arrived and searched the van. He found a black leather purse on the floorboard next to the front passenger seat.

The police took R.M. to the location where the van had been stopped. She identified the woman who took her purse and the van which had fled with her purse. She also identified the purse found in the van as her own.

Another police officer transported defendant and the companion woman to the Garden Grove police station. During the trip, a video camera captured the two suspects kissing each other in the back seat of the patrol vehicle.

DISCUSSION

To assist the court in conducting its independent review of the record, appointed counsel identified two potential issues for consideration. (Anders v. California (1967) 386 U.S. 738, 745.) First, did the court abuse its discretion by denying defendant’s two motions to dismiss two sworn jurors who reported that they knew a prosecution witness? Second, did the court abuse its discretion by allowing the jurors to view the video of defendant and his female companion kissing in the back seat of the patrol vehicle?

Regarding the sworn jurors, one of the jurors reported to the court that he recognized a witness standing in the hallway as the nephew of a good friend. The witness turned out to be the passerby motorist who had happened upon the scene. The court appropriately inquired of the juror about his relationship, if any, with the friend’s nephew and determined the relationship was not such that would cause the juror any difficulty in fairly evaluating the evidence. During the testimony of the police officer who searched the van and found R.M.’s purse, another juror reported that he knew the officer’s brother. Again, the court appropriately inquired about the juror’s relationship, if any, with the officer and determined that the relationship was not such that would cause the juror any difficulty in fairly evaluating the evidence. Our independent review of the record confirms the court’s assessment. No abuse of discretion is discerned.

As to the video of the defendant and his female companion kissing in the back seat of the patrol vehicle, the evidence was clearly relevant as tending in reason to show a relationship between the suspects from which it could be inferred that defendant was acting as an aider and abettor in encouraging and facilitating the robbery. There was no abuse of discretion in making this ruling.

Finally, we observe that the evidence was manifestly sufficient to convict defendant of robbery. (§ 211 [“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear”].) Defendant acted as a direct perpetrator when he applied force to escape with the purse by accelerating the vehicle while R.M. was clinging to the van. (See People v. Estes (1983) 147 Cal.App.3d 23, 27-28.) He also aided and abetted his female companion by acting as a getaway driver and by yelling “hit her, hit her” as his female companion struggled to gain control of the purse. (§ 31 [“All persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission . . . are principals in any crime so committed”].)

Our independent review of the entire record has not disclosed any arguable issue on appeal.

DISPOSITION

The judgment is affirmed.

IKOLA, J.

WE CONCUR:

MOORE, ACTING P. J.

ARONSON, J.