P. v. Cooley

Filed 3/19/07 P. v. Cooley CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Stephen A. Marcus, Judge. Affirmed.

Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________________

Roderick Grant Cooley appeals from judgment entered after a jury convicted him of second degree robbery and possession of cocaine base.

Hector Puc pulled his car over to speak to a woman who was waving at him. Appellant stepped forward from behind the woman, reached across Pucs car, and removed the keys from the ignition. He took Pucs watch and Puc handed appellant his wallet. Puc told appellant to take the cash, but leave him the wallet. Appellant took the wallet anyway. Puc got out of his car, but co-defendant Mark Bray blocked his departure. Bray went through appellants pockets, where he carried additional cash. Appellant, Bray, and the woman walked away. Puc watched and followed them. He called the police, who eventually responded and located appellant and Bray. When appellant was confronted by police officers, he dropped Pucs drivers license, bank card and watch, along with someone elses wallet and a plastic bag that contained 0.66 grams of cocaine base.

The court found appellant had suffered a prior serious or violent felony conviction and served eight prior prison terms within the scope of Penal Code section 667.5, subdivision (b). It sentenced appellant to a second strike term of 13 years in prison.

We appointed counsel to represent appellant on appeal. After examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record. Appellant filed a supplemental brief in which he contended the robbery never occurred.

We have examined the entire record and appellants contentions, and have not found any arguable issues. (Peoplev. Wende (1979) 25 Cal.3d 436, 441.)

Appellant primarily supports his contention by setting forth matters of a factual nature that are outside of the record. These matters cannot be considered on appeal. Appellant also relies upon inconsistencies in Pucs testimony and contradictions between Pucs testimony and the police report or police officers testimony. The police report was only used to refresh the recollection of witnesses at trial. It was not introduced as evidence at the trial and is not part of the appellate record. It therefore cannot be considered on appeal. The inconsistencies and contradiction in testimony were the subject of extensive cross-examination and argument by defense counsel. They do not diminish the sufficiency of the evidence to support appellants convictions.

Appellant also bases his contention upon evidence that Puc voluntarily handed him the wallet. Although Puc handed over his wallet without request and urged appellant to take the money, he requested that appellant give back the wallet, which he did not do. In addition, appellant took Pucs watch, which was not voluntarily relinquished. Indeed, appellant still possessed Pucs drivers license and watch when he was stopped by the police. Puc also testified that he was frightened by the conduct of appellant and Bray. The jury could reasonably infer this fear prevented Puc from resisting the taking of the watch and attempting to retrieve the wallet from appellant. Accordingly, a reasonably jury could find, beyond a reasonable doubt, that appellant took Pucs watch and wallet by means of fear.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

COOPER, P. J.

FLIER, J.

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