Filed 1/16/18 P. v. Salas CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant Gerald Salas appeals from a second degree robbery conviction following a bench trial. His appointed appellate counsel has filed a brief advising that he finds no arguable issues to present, and pursuant to People v. Wende (1979) 25 Cal.3d 436 requests that this court conduct an independent review of the record to determine if there are any arguable issues that require briefing. Counsel apprised defendant of his right to file a supplemental brief, and defendant elected not to do so.

Our review of the record revealed the following evidence pertaining to the robbery:

On June 24, 2014 at approximately 5:30 a.m., Daniel Leister was working the graveyard shift at a 7-Eleven convenience store in San Leandro. Leister was behind the counter when an individual wearing a mask that “looked like an old person” walked in. The individual approached the register, pulled out a gun, pointed it at Leister, and motioned for him to hand over the money in the register. Leister complied, and the robber put the gun in the left pocket of his jacket, scooped up the money, and left the store, fleeing towards Ehle Street. The robbery was captured by the surveillance cameras inside the 7-Eleven store. In the surveillance video, the suspect can be seen wearing a baseball cap with earflaps and a wig with the hair tied back with a hair tie. He can also be seen putting the gun in the left pocket of his coat.

Alameda County Sheriff’s Deputy Terrance Montigue was assigned to investigate the robbery. After viewing the surveillance video of the robbery, he created an electronic flier to alert other law enforcement agencies to the details of the incident. He received no response from other agencies regarding the suspect.

On August 13, Deputy Montigue was conducting a series of probation searches. One residence he searched was that of defendant and his girlfriend, who lived in an apartment on Ehle Street in San Leandro, approximately one-tenth of a mile from the

7-Eleven that had been robbed in June. When Deputy Montigue approached defendant’s apartment, the security gate and the front door were open but no one was home. Inside the apartment, he discovered methamphetamine and drug paraphernalia in the kitchen area. In the bedroom, there was a closet that had been divided into two sections, one containing women’s clothing, the other men’s. On the men’s side, there was a jacket with what appeared to be a chrome and black gun sticking out of the left pocket. Recognizing the jacket and the gun from the surveillance video of the June robbery, Deputy Montigue continued to search for additional items the suspect had been wearing. He found a wig with a hair tie in the closet and a light-colored baseball cap with earflaps in a storage bin in the bedroom.[1] Deputy Montigue confiscated the items and returned to the police department, where he reviewed his report and the surveillance video to confirm that the items matched what the robbery suspect had been wearing.

Two days after the search, Deputy Montigue obtained a warrant and took defendant into custody on a probation violation. He was interviewed at the police station, where he was read his Miranda rights. When asked about the robbery, defendant initially denied having been involved, claiming the items belonged to his cousin who had committed the robbery. He eventually admitted he committed the crime to support his drug habit.

Defendant was charged with second degree robbery in violation of Penal Code section 211,[2] with an allegation that during the commission of the robbery, he personally used a firearm within the meaning of sections 1203.06, subdivision (a)(1) and 12022.5, subdivision (a). It was also alleged that defendant had suffered two previous strike convictions and had to be sentenced pursuant to sections 1170.12, subdivision (c)(2), and 667, subdivision (e)(2), and that he had served five prior prison terms and had not remained free of prison custody for five years within the meaning of section 667.5, subdivision (b).

Defendant waived a jury trial in exchange for a maximum exposure of 18 years.

Following a two-day bench trial, the court found defendant guilty of second degree robbery. It found not true, however, the allegation that he had personally used a firearm during the commission of the robbery.[3]

The court then held a bench trial on defendant’s prior convictions. Defendant stipulated he had suffered a prior strike conviction and three prior prison terms, one of which (burglary in violation of section 459) the People amended to a second degree offense. The court struck the two remaining prior prison term allegations.

Defendant was sentenced to 17 years in state prison, comprised of five years for the robbery conviction, doubled to 10 years due to the prior strike (§ 1170.12, subd. (c)(1)); five years consecutive on one of the prior prison terms (§ 667, subd. (a)(1); and two years consecutive on the other two prior prison terms (§ 667.5, subd. (b)). He was also ordered to pay all applicable fines, fees, and restitution. He was awarded 992 days credit.

Defendant filed a timely appeal.

We have conducted our independent review of the record in accordance with our obligations under People v. Wende, supra, 25 Cal.3d 436, and we find no arguable issues requiring briefing. The judgment of conviction is affirmed.

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Richman, Acting P.J.

We concur:

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Stewart, J.

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Miller, J.

A150516; P. v. Salas