P. v. Clark

Filed 3/6/06 P. v. Clark CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Barry A. Taylor, Judge. Modified and affirmed.

Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.

______________________________

Kenneth A. Clark appeals from his convictions of robbery and burglary. He contends the trial court erred by admitting the hearsay cell phone records of two of the victims. He also contends, and respondent concedes, that the enhancement imposed for personal use of a weapon must be modified. Other than the enhancement, we find no reversible error and affirm the judgment of conviction as modified.

FACTUAL AND PROCEDURAL SUMMARY

This appeal concerns only two of four counts on which appellant was convicted. Russell Garcia, a bread delivery man, was grabbed from behind by a robber on the night of March 28, 2004. The robber held Garcia around the neck, poked something into his back, and walked him to the cab of the truck. On the robber's command, Garcia turned over his cell phone, money, driver's license and medical card. The robber dropped the driver's license and medical card when Garcia asked him to do so. Garcia was unable to identify appellant as his assailant. Garcia identified a cell phone recovered by detectives (exhibit 1) as his. The prosecutor asked Garcia whether he had reason to use the cell phone to call the Riverview Community Center in Azusa.[1] Garcia said he did not, and that he had never heard of that place before.

Over a defense hearsay objection, the trial court admitted the Sprint bill for Garcia's cell phone. It noted calls made after the phone was taken from Garcia, which he did not make. Garcia testified that his cell phone retained the numbers for the last 10 calls made, but he was not asked about any specific call found in the memory of his phone. On redirect, the trial court denied the prosecutor's request to reopen to ask Garcia additional questions about his cell phone.

Detective Maria Perez accessed the memory on Garcia's cell phone and recorded the calls made after the phone was stolen. One of these was to the River Community Center in Azusa. Appellant's grandmother testified that he had been living at that center until he moved in with her shortly before the robberies. She said that appellant took the prescription medication Wellbutrin.

Hue Minh Lu was the victim in count 2, carjacking. Later on the same evening that Garcia was robbed, Lu was sitting in his car at an Arco gas station. He was approached by a man who demanded money. Lu resisted and reached for pepper spray. The robber took the spray, then leaned into the car, and grabbed the key from the ignition. When Lu ran into the gas station for help, the robber drove off in the car. When Lu came back outside to where his car had been, he found a bottle of prescription medicine with the name â€