P. v. Gilbert
Filed 7/1/13 P. v. Gilbert CA2/2
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
WHYTINNIE LEE GILBERT et al.,
Defendants and Appellants.
B241622
(Los Angeles
County
Super. Ct.
No. BA387578)
THE COURT:
name="_ftnref1" title="">*
Defendants
Whytinnie Lee Gilbert (Gilbert) and Armand Jamall Johnson (Johnson) appeal
following their convictions for second
degree robbery in violation of Penal Code Section 211.
sever his trial from Johnson’s. The
trial court sentenced Gilbert to the midterm of three years for the robbery and
one consecutive year under section 667.5, subdivision (b) for having suffered a
prior prison term, which he admitted.
Gilbert was awarded 68 days actual custody credits and 10 days of conduct
credits. The trial court sentenced
Johnson to the midterm of three years.
Johnson was awarded 41 actual credit days and six conduct days. The defendants were ordered to make
restitution in the amount of $200 to the victim to be paid jointly and severally.
We
appointed counsel to represent
defendants on this appeal. After
examination of the record, counsel filed “Opening Briefs†acknowledging that
they had been unable to find any arguable issues. On January
2, 2013, we advised Johnson that he had 30 days within which to
personally submit any contentions or issues that he wished us to consider. On February
28, 2013, we sent Gilbert the same notice. No response has been received to date from
either defendant.
The record
shows that Martha Melgar’s shoulder bag was taken from her as she walked to the
bus stop in the area of 58th Street and Hoover Street on August 1, 2011, at
approximately noon. A Black man came
from behind and pulled on the bag. When
she did not let go of the bag, he began to drag her. The man tripped her and she fell. The man ran and entered the passenger door of
a gold car that “took off.†The bag
contained $60 and a custom-made dental plate worth $350. She could not identify the robber at trial.
Edwin Rivas
witnessed the robbery while stopped at a stoplight. He saw Gilbert snatch the victim’s bag, drag
her, and kick her as he started running away.
He began sounding his horn and yelling at Gilbert. He saw Gilbert get into a gold Cadillac, and
he saw Johnson at the wheel. Rivas took
photographs of the Cadillac with a cell phone.
The Cadillac sped away, and Rivas pursued it onto the freeway. Rivas continued to chase the Cadillac on the
freeway and was able to obtain the license plate number. Rivas was communicating with a 911 operator,
and the police told him not to pursue any further. Rivas identified the defendants in
photographic lineups.
Linette
Campos also saw the robbery. She saw the
robber enter the open door of a tan or gold Cadillac. She selected Gilbert’s photograph in a
photographic lineup. She also identified
Gilbert in court as the robber.
Police
identified the registered owner of the Cadillac as McKinley Moore. Moore is Johnson’s father, and Johnson
sometimes used the surname Moore.
Approximately one-half hour after the robbery occurred, Johnson’s
sister, Niya Williams, called 911 to report that their father’s car had been
stolen. Johnson eventually responded to
requests to speak with the police, and he was interviewed. He said he was in Lancaster on the day of the
robbery and had not driven the Cadillac in over a year. At the end of the interview, he was arrested. He was told that his sister could face
criminal charges for falsely reporting the car stolen. Johnson then told his interviewers that the
Cadillac was stolen from him as he “was going to the post office.†He asked his sister to report it because he
did not have a valid license. Gilbert
was a known associate of Johnson.
Dr. Robert
Shomer testified as an expert on factors involving perception, memory and
way eyewitness identification works based on “large-body science research.†He stated that there is almost unanimous
agreement it is very unreliable.
Cross-racial identifications and those made in stressful situations are
less accurate than others.
We have
examined the entire record and are satisfied that defendants’ attorneys have
fully complied with their responsibilities and that no
v. Wende (1979) 25 Cal.3d 436, 441.)
The
judgments are affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
name="_ftn1" title="">* BOREN, P.J., ASHMANN-GERST, J.,
CHAVEZ, J.
name="_ftn2" title="">[1]
further references to statutes are to the Penal Code unless stated otherwise.
