P. v. Thornton

Filed 1/19/07  P. v. Thornton CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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 TWO

            APPEAL from a judgment of the Superior Court of Los Angeles County.  Arthur  Jean, Judge.  Affirmed with directions.

            Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Steven  D.  Matthews, Deputy Attorneys General, for Plaintiff and Respondent.

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            Donnell Thornton (defendant) appeals from the judgment entered following a jury trial resulting in his conviction of second degree robbery with the use of a deadly and dangerous weapon, a knife.  (Pen. Code, §§ 211, 12022, subd. (b)(1).)[1]  In bifurcated proceedings, the trial court found that defendant had a prior serious felony conviction that required a five-year enhancement (§  667, subd. (a)(1)) and qualified him for sentencing pursuant to the three strikes law (§§ 667, subds. (b)-(e), 1170.12).  The trial court additionally found that defendant had three prior felony convictions for which he had served a separate prison term.  (§ 667.5, subd. (b).)  At sentencing, the trial court imposed an aggregate 14-year term in state prison.

            On appeal, defendant contends that he is entitled to have the judgment reversed because the prosecutor committed prejudicial misconduct.  We are not persuaded by the contention.  Additionally, we asked the parties to brief, if they wished to do so, unaddressed sentencing error.  After again considering the sentencing proceedings and a letter brief from appellate counsel, we hold there is no sentencing error.  We affirm the judgment with directions to the superior court to correct the abstract of judgment.

THE FACTS

            Shortly before 6:30 p.m., on October 6, 2005, 16-year-old Darryn L. was bicycling down Linden Street between 14th and New York Streets in Long Beach.  As Darryn L. pedaled along, a man approached and knocked him off his bicycle.  At knifepoint, the man demanded the youth's money and searched his pockets.  The man removed $6 in United States currency from Darryn L.'s pants pocket and ran southbound toward Anaheim Street.

            Darryn L. went home, immediately reported the robbery, and gave the responding police officer a physical description of the robber.  Darryn L. said that his assailant had black hair with some gray, and the man was wearing black pants and a black shirt bearing the logo of a cup of coffee.  The man smelled as if he had been drinking alcoholic beverages.

            At about 8:00 p.m., Long Beach police officers stopped defendant on Martin Luther King Avenue, about seven blocks from the robbery site.  Defendant was drinking from a 24-ounce can of malt liquor, which he was holding inside a brown paper bag.  The officers arrested defendant for drinking an alcoholic beverage in public.  The officers noticed that defendant was wearing a black T-shirt with a logo that matched the description of that worn by the robber.

            Other police officers transported Darryn L. to the arrest site.  In a field identification procedure, Darryn L. identified defendant as the robber.  At trial, Darryn L. testified that he recognized defendant as the robber by his physical features, his clothing, and the unique logo on defendant's black shirt.  Darryn L. also identified defendant at a pretrial lineup and during the preliminary hearing.  Darryn L. was certain of his identification.

            At booking, defendant waived his Miranda rights.  (Miranda v. Arizona (1966) 384 U.S. 436.)  The officers asked defendant where he was at 6:00 p.m. that evening.  Defendant replied that he was in the area of Atlantic Avenue and Anaheim Street, a location several blocks from the robbery site.  The officers mentioned nothing to defendant about a robbery.  Nevertheless, defendant repeatedly blurted out that he had not committed robbery.

            In defense, defendant did not testify or present evidence.  During defense counsel's final comments to the jury, defense counsel argued mistaken identification.

DISCUSSION

I.  Prosecutorial Misconduct

            Defendant contends that certain â€