P. v. Ruff
Filed 4/19/11 P. v. Ruff CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
| THE PEOPLE, Plaintiff and Respondent, v. TONY LEWIS RUFF II, Defendant and Appellant. | E051563 (Super.Ct.No. RIF152813) OPINION |
APPEAL from the Superior Court of Riverside County. J. Richard Couzens, Judge. (Retired judge of the Placer County Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Tracy Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
I
INTRODUCTION
On June 7, 2010, an amended information charged defendant and appellant Tony Lewis Ruff II with attempted murder under Penal Code[1] sections 664 and 187, subdivision (a) (count 1); assault by means of force likely to produce great bodily injury under section 245, subdivision (a)(1) (count 2); attempted robbery under sections 664 and 211 (count 3); two counts of burglary of an inhabited dwelling under sections 459 and 460 (counts 4 & 6); and elder abuse under section 368, subdivision (b)(1) (count 5). As to counts 1 through 4, the information also alleged that defendant personally inflicted great bodily injury under sections 12022.7, subdivision (a), and 1192.7, subdivision (c)(8). The information further alleged that defendant had served a qualifying prior prison term under section 667.5, subdivision (b).
Previously, on April 9, 2010, the trial court denied defendant’s motion under section 995 to dismiss the information. On May 7, 2010, the trial court denied defendant’s request for a hearing under People v. Marsden (1970) 2 Cal.3d 118.
On June 7, 2010, jury trial on the amended information commenced.[2] On June 14, 2010, the jury returned a verdict of not guilty on count 1 (attempted murder), and was unable to reach a verdict on attempted voluntary manslaughter under sections 664 and 192, as a lesser included offense to attempted murder. The jury found defendant guilty of counts 2, 3, 4, 5, and 6. Moreover, the allegations of personal infliction of great bodily injury were found true as to counts 2, 3, and 4.
At the sentencing hearing on August 6, 2010, the court dismissed count 1 (attempted murder) on the People’s motion. Thereafter, the court denied probation and sentenced defendant to a total term of 11 years four months in state prison. The court first sentenced defendant to the upper term of six years on count 4 (burglary of an inhabited dwelling), with an additional consecutive three years under section 12022.7, subdivision (a). The court then sentenced defendant to the upper terms on count 2 (assault), count 3 (attempted robbery), and count 5 (elder abuse); and stayed the terms under section 654. The court also imposed a consecutive term of one-third the midterm on count 6 (burglary of an inhabited dwelling), for a term of one year four months in state prison. Furthermore, the court sentenced defendant to a consecutive one-year term for the prison prior.
On August 6, 2010, defendant filed a timely notice of appeal.
II
STATEMENT OF FACTS
A. Prosecution Evidence
On September 23, 2009, at 9:00 a.m., Alice Cicio went outside her home on Willow Avenue in Riverside, to water her lawn. When she finished watering the lawn, she realized that her front door was locked. Believing that she had locked herself out of her home, she entered the code on her garage and went in through the garage. After opening the door from the garage to the living room, Cicio came face-to-face with defendant. Cicio stated she never stepped into the house, but she was on the steps leading from the garage into the living room. Cicio saw defendant for “a few seconds.” She identified defendant was wearing a blue shirt with horizontal white stripes. Defendant ran out the front door and up Willow Avenue in the direction of Madison Street. Nothing in the home was disturbed or taken.
While the police were investigating the incident at Cicio’s home, they received another call; the police left to respond to the new call. Approximately five minutes later, the police returned and escorted Cicio to Ramona High School to identify a person in custody. Cicio was unable to make an identification. The next day, Cicio saw a picture of defendant in the local newspaper and called police to inform them that she remembered the face as the person she saw in her home the previous day. Cicio identified defendant as the person in her home at the preliminary hearing. During her testimony at trial, Cicio was shown exhibit 72; she stated that it was not the shirt defendant was wearing when she saw him in her house.
Approximately 20 minutes after Cicio’s incident on September 23, 2009, Maria Velez went outside to water the front yard of her home on Madison Street in Riverside. Velez exited her house through the side door but did not lock the door. Velez heard a bell on her screen door jingle and thought a friend had come by, or that her dog had run out. She went over to the door and then went inside. She saw a man in the doorway between the family room and dining room. Velez identified defendant as the person she saw in her home. Velez asked defendant, “Who are you What are you doing here”
Defendant ran toward a set of French doors which were open. He went a few feet outside the house, looked around, and then re-entered Velez’s residence. Velez was in the family room. Defendant grabbed her and began to hit her. Defendant demanded money. Velez replied that she had no money. Defendant punched her. Velez tried to escape through the kitchen but defendant grabbed her again. Defendant put his arm around Velez’s neck and told her he was going to kill her. He told her that he would kill her unless she gave him money. When Velez dropped down to her knee, defendant ran out the side door.
Velez was taken to the hospital. She suffered injuries that included cuts to her head, bruising and pain to her arms, a swollen mouth, injury to her eye, and damage to “bone work” on her mouth. Velez was required to wear a neck brace as a result of the choking. Moreover, Velez was still seeing a psychologist as a result of the attack.
Velez described the shirt defendant was wearing as a dark shirt with little white horizontal stripes. Velez identified the shirt in exhibit 72 as the shirt defendant was wearing. Velez was shown a photographic lineup by a detective the day after the incident; she picked a photograph that was not defendant. The detective informed Velez she was wrong and pointed out the photograph of the person who was arrested. At the preliminary hearing, Velez identified defendant as the person in her home. Velez admitted that she had read a September 24, 2009, article about the incident in the newspaper, and that she had spoken to Cicio a week after the incident.
On September 23, 2009, Annette Kimberly Nabors was walking on Madison Street with her husband and three children, ages five, three and eight months. Nabors saw a man run out of Velez’s yard and past her on the sidewalk. The man looked back as he ran. Nabors described the shirt he was wearing as black with gold stripes. She stated that the shirt labeled as Exhibit 72 was not the shirt the man who ran past her was wearing. Nabors identified the person in custody at Ramona High School as the man who had run past her.
On the same date, about 9:30 a.m., Christopher Brothers was preparing to trim the hedges at the back of his property on San Juan Avenue. Brothers saw a man walk by the fence in the alley, making a “zig zag” pattern from one side of the alley to the other. Brothers also noted that there was a helicopter flying overhead. Brothers observed the individual opening trashcans in the alley. The man had a black shirt in his left hand. Brothers identified defendant as the person he had seen in the alley. Brothers identified the person in custody at Ramona High School as the person he had seen in the alley. Brothers also testified that the shirt marked as Exhibit 72 was the shirt recovered from the trashcan.
Riverside Police Officer Celeste Neiman testified that she searched other trash cans and did not find any other shirts. Officer Neiman stated that another officer, Officer Stucker, recovered the shirt from the trash can and two other officers submitted it into evidence.
Kevin Feimer, a Riverside Police Officer assigned to Ramona High School, testified that “at most” it is a 10 to 15 minute walk from the corner of Willow Avenue and Jefferson, to Madison Street. At 9:55 a.m. on the day of the incident, Officer Feimer was entering the high school parking lot as he heard a broadcast of a home invasion robbery. The broadcast included a description of the suspect. The broadcast stated that the suspect was wearing a black shirt and dark pants, and had corn-rowed hair and a goatee. Officer Feimer saw defendant walking westbound at the east end of the parking lot. Defendant was not wearing or carrying a shirt; he was sweating profusely. Officer Feimer stopped defendant, and he stated that he was coming from his house on Emerald Street and going to his cousin’s house on Madison Street.
Officer Feimer stated that Emerald Street was south of the high school, so he asked defendant why he was walking in the opposite direction from Madison Street. Defendant said, “Oh, I am just going to buy some dope.” The officer stated that defendant was the only person in the area. The officer did not notice any blood on defendant.
B. Defense Evidence
Robert William Shomer, a forensic eyewitness identification expert, testified about the factors that go into accuracy or inaccuracy of an identification. Shomer discussed the factors of stress, time-exposure, cross-racial identification, and focus of attention—as these factors relate to the accuracy of identification. Shomer also explained police procedures in photographic lineups and related problems associated with such procedures. Moreover, Shomer described the problems associated with eyewitness identification where the witness had seen photographs of the person identified, which Shomer referred to as “media taint.” Furthermore, Shomer discussed the problems that arise with accurate eyewitness identification when witnesses communicate with other witnesses, and the forms of contamination and influence that result.
III
ANALYSIS
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ McKinster
J.
We concur:
/s/ Hollenhorst
Acting P.J.
/s/ King
J.
