P. v. Raines

Filed 4/10/07 P. v. Raines CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, DudleyW. Gray II, Judge. Affirmed.

Lisa M. Bassis, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

______________________________________________

Anthony Clinton Raines appeals the judgment entered following a jury trial which resulted in his conviction of first degree robbery of a person immediately after the person had used an automated teller machine (Pen. Code, 211). The trial court sentenced Raines to three years in prison. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Viewed in accordance with the usual rules of appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence established that at approximately 11:00 p.m. on June 11, 2005, Inez Dentchuk (Dentchuk) drove from her home to the Automatic Teller Machine (ATM) at the Washington Mutual Bank at 21660 Hawthorne Boulevard in Los Angeles. As she pulled into the parking lot, Dentchuk saw Raines walking around the area.

Dentchuk parked her car in front of the ATM, got out and made a deposit. As Dentchuk was walking back to her car, Raines approached her, pulled out a black gun, pointed it at Dentchuk and asked her for her wallet. Frightened for her life, Dentchuk handed Raines her wallet, which contained three $20 bills. After Raines took the wallet, turned and walked away, Dentchuk returned to her home and telephoned the Torrance police.

Later that night, a Torrance police officer picked up Dentchuk and took her to a location not far from the Washington Mutual Bank to see if a man detained there was the man who taken her wallet. Dentchuk identified Raines as the man who had robbed her.

On the night of June 11. 2005, Police Officer Steven Jangaard (Jangaard) and a partner were on patrol in a marked patrol car. Shortly after 11:00 p.m., Jangaard received a call indicating a robbery had just occurred at the Washington Mutual ATM on Hawthorne Boulevard. After being given a description of the robbery suspect, Jangaard and his partner drove to the Washington Mutual ATM to see if the suspect was still in the area. However, Jangaard saw no one at or near the ATM.

Approximately 15 minutes later, Jangaard received a call indicating a suspicious person had been seen at the Bank of America located just off of Hawthorne Boulevard, approximately two miles north of the Washington Mutual Bank. The description of the suspicious person matched that of the man who had robbed Dentchuk and Jangaard drove to the Bank of America to investigate. There, Jangaard observed Raines sitting on a bus bench in front of the bank.

Jangaard approached Raines, placed him in handcuffs and asked him if he was carrying any weapons. Raines indicated he had a B.B. gun in his right front pants pocket. Jangaard retrieved the gun, then placed Raines in the back seat of the patrol car.

After Dentchuk arrived and identified Raines as the man who had robbed her, Jangaard advised Raines of his Miranda rights. Raines indicated he understood those rights and wished to talk with the officer. Raines then stated he was the person at Carson and Hawthorne, the intersection where the Washington Mutual ATM is located. Raines continued, telling the officer the B.B. gun had not been loaded and he pointed it at Dentchuk only to frighten her. Raines had never intended to shoot Dentchuk. After Dentchuk handed her wallet to Raines, he ran southbound. When he later looked into the wallet and saw only pictures, he threw the wallet away.

Later, as Raines was being booked, he indicated he had taken a bus to the Washington Mutual ATM and had then taken another bus to the Bank of America. When Jangaard asked Raines about the possibility of a car being involved, Raines admitted that there had been a white Ford Explorer.

On the night of June 11, 2005, Torrance Police Officer Mark Athan (Athan) received a call directing him to check the area surrounding the Bank of America at 1603 Hawthorne Boulevard for a white Ford Explorer with a particular license plate number. Athan found the Explorer, which was unlocked. The keys were in the ignition and, on the console, Athan found a wallet containing Rainess identification and some loose currency consisting of three $20 bills, two $5 bills and two $1 bills.

Torrance Police Officer Patrick Ghesquiere (Ghesquiere) was assigned to investigate the case against Raines. On June 13, 2005, Ghesquiere spoke with Raines in an interview room at the Torrance jail. After Ghesquiere advised Raines of his Miranda rights, Raines agreed to speak with Ghesquiere and told the officer that at approximately 6:30 p.m. on June 11, he, Raines, had been the victim of a robbery. Two men had taken by force property from Raines. Raines went home, then decided he wanted to commit a robbery to . . . put the shoe on the other foot, . . . to see how it would feel to be the person robbing someone rather than being robbed. Raines obtained the B.B. gun from a friend, then drove to the Washington Mutual Bank and parked nearby. When he saw Dentchuk at the ATM, he got out of the car, approached her with the gun drawn and committed a robbery. After taking Dentchuks wallet, Raines ran to the car. When he saw a white security truck, Raines panicked, threw Dentchuks wallet into the street, and drove north toward the Bank of America. Raines parked the car, got out and walked around.

During the course of the interview, Raines indicated he was sorry for what he had done. Ghesquiere told Raines that it was okay if he wanted to write [a] . . . letter to the victim. While still in the interview room, Raines wrote a letter to Dentchuk apologizing for robbing her.^[1]

2. Procedural History.

At proceedings held on August 29, 2005, Raines waived his right to a preliminary hearing.

On September 13, 2005, Raines was charged by information with one count of FIRST DEGREE AUTOMATED TELLER MACHINE ROBBERY in violation of Penal Code section 211. Raines entered a plea of not guilty to the offense.

At proceedings held on March 13, 2006, defense counsel requested that a psychological report by a Dr. Dunn, which indicated the defendant [Raines] went through some type of trauma from losing his parents more than a decade ago, be allowed into evidence. Counsel argued the evidence was relevant in that it would . . . impact the required state of mind element in this case. The trial court sustained the Peoples objection to the evidence.

On March 15, 2006, at proceedings held outside the presence of the jury, a hearing was held pursuant to Evidence Code section 402 to determine the voluntariness of statements made by Raines to police officers. Following testimony by Officer Steven Jangaard and Officer Patrick Ghesquiere, the trial court determined the statements made by Raines, both in the patrol car on the night of the robbery and in the interview room at the Torrance jail, had been voluntary and were admissible.

At the same proceedings, it was determined that both the conversation with Raines in the patrol car and the interview at the jail had been tape recorded. Defense counsel indicated the prosecutor had only received the recordings the previous evening and had not yet had the opportunity to provide defense counsel with copies or transcriptions. Rather than request a continuance so that copies or transcriptions could be provided, defense counsel asked that the recordings be excluded. The prosecutor agreed to exclude evidence of the recordings, although he believed they [were] unbelievably dam[n]ing to the defense. The prosecutor stated, I think the win/win situation that [defense counsel] and I reached was I wont refer to them. I dont intend to offer them . . . . And that way we can go forward with the trial with me missing a very strong piece of evidence and [defense counsel] having been made up for the fact that they were late in arriving.

At a hearing held outside the presence of the jury, defense counsel objected to admission of the B.B. gun, arguing Dentchuk had never identified the gun as the one used by Raines during the robbery. The trial court overruled defense counsels objection to the evidence, indicating counsels argument went to the weight of the evidence, not its admissibility.

Again outside the presence of the jury, defense counsel objected to the admission of Officer Jangaards testimony regarding the description he had received of the robbery suspect. Counsel argued the evidence amounted to inadmissible hearsay. The trial court overruled counsels objection.

At the end of the prosecutions case, defense counsel made a motion for acquittal pursuant to Penal Code section 1118.1. The trial court denied the motion.

Before the jury was instructed, defense counsel objected to the giving of CALJIC No. 2.03. That instruction states in relevant part, if the jurors find the defendant made a willfully false statement, that statement may be considered as a circumstance tending to prove a consciousness of guilt. After the prosecutor argued the instruction applied since Raines had first stated he took buses to both banks, then later indicated he had driven a Ford Explorer, the trial court determined the instruction was supported by the evidence.

The jury found Raines guilty of first degree robbery in violation of Penal Code section 211.

After considering sentencing memoranda, a psychological assessment and over 30 letters submitted on Rainess behalf, the trial court sentenced Raines to the low term of three years in state prison. Raines was awarded presentence custody credit for 97 days actually served and fifteen percent, or 16 days, of good time/work time, for a total of 113 days.

Raines timely filed a notice of appeal.

CONTENTIONS

After examination of the record, Rainess appellate counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

By notice dated January 23, 2007, the clerk of this court advised Raines to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.

APPELLATE REVIEW

We have examined the entire record and are satisfied Rainess counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

We Concur:

KLEIN, P. J.

ALDRICH, J.

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^[1] In the letter, which was admitted into evidence, Raines wrote: My intentions were not to harm you in any way or form, but to frighten you. But, instead of what I planned on happening, something else did. You were violated, robbed, and I deserve every punishment for the crime that I have committed. Please accept my apology, and if you cannot, then please accept at least a thought of forgiveness. The person that violated you on Saturday night is not the person I truly am inside. Deep down I am an honest, hard-working and diligent young man who made an unwise decision. Again, I am sorry for what has happened, and if my apology is not accepted, then please forgive me. [] Sincerely, Anthony C. Raines.