Filed 11/28/18 P. v. Mitchell CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Defendant Ronald Mitchell appeals from a sentence of one year in county jail and two years’ probation after he was found guilty by a jury of felony robbery, misdemeanor assault, and misdemeanor giving false information to a police officer in connection with taking a woman’s cell phone by force and giving a false name to the police when he was arrested. Mitchell’s counsel has asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) We find none and affirm.

Mitchell was arrested after he took a woman’s cell phone as she was walking near 19th Avenue and Lincoln Way in San Francisco, threw the victim to the ground, and later gave a false name to police when he was arrested. He was evaluated for competency after his attorney raised a doubt about his ability to stand trial, the trial court found Mitchell was competent to stand trial, and no error appears in that determination. (People v. Kirvin (2014) 231 Cal.App.4th 1507, 1514 [not for appellate court to redetermine credibility of experts or reweigh strength of their conclusions].) Also before trial, Mitchell sought to discharge his appointed attorney under People v. Marsden (1970) 2 Cal.3d 118, the trial court denied the request, and it did not abuse its discretion when it did so. (People v. Smith (2003) 30 Cal.4th 581, 604.)

Mitchell sought to exclude statements he made (while handcuffed) because Mitchell had not yet been told his rights under Miranda v. Arizona (1966) 384 U.S. 436. The trial court ruled that Miranda warnings were not yet required because Mitchell was not under arrest and was handcuffed only for officer safety, meaning the handcuffing did not transform the detention into an arrest. (In re Victor B. (1994) 24 Cal.App.4th 521, 523 [Miranda warnings unnecessary when information received as part of investigatory detention].) The facts upon which the trial court relied were supported by substantial evidence, and the decision was legally correct.

The trial court also allowed, over Mitchell’s Confrontation Clause objection, admission of a witness’s statement made shortly after the incident, and in Mitchell’s presence, that Mitchell had thrown the phone to the ground. In response to the statement, Mitchell said, “t slipped out of my hand.” The court ruled that the witness’s statement would be admitted, even though the witness would not be testifying at trial, because it was nonhearsay admissible not for the truth, but to provide context and meaning to Mitchell’s admission that “it slipped out of my hand.” No error appears. (See People v. Combs (2004) 34 Cal.4th 821, 842 [accusatory statement not admitted for its truth when submitted to supply meaning to a response of the accused in the face of it].)

The court also admitted, over Mitchell’s hearsay and Evidence Code section 352 objections, excerpts from two 911 tapes of witnesses describing Mitchell beating the victim. The trial court allowed the admission of the statements as spontaneous utterances (Evid. Code, § 1240) and ruled that both were admissible as nonduplicative because they provided different contexts. The trial court acted well within its discretion when it issued these rulings. ([i]People v. Waidla (2000) 22 Cal.4th 690, 723 [abuse of discretion standard of review applies to trial court’s rulings on admissibility of evidence, including hearsay]; People v. Alvarez (1996) 14 Cal.4th 155, 203 [“an appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion”].) And even if the court erred as a matter of state law in admitting the statements, it is not more likely than not that the jury would have reached a different result in light of the overwhelming evidence against Mitchell. (People v. Watson (1956) 46 Cal.2d 818, 836.)

A jury found Mitchell guilty of felony robbery (Pen. Code, § 211);[1] simple assault (§ 240), as a lesser-included offense of the charged offense of assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)); and misdemeanor giving false information to a police officer (§ 148.9, subd. (a)). A review of the testimony and other evidence presented at trial reveals that substantial evidence supports the judgment.

At the sentencing hearing, the trial court found unusual circumstances that would support the grant of probation (§ 1203, subd. (e)(1)), suspended imposition of sentence, sentenced Mitchell to one year in the county jail, and placed him on a two-year period of probation. The court awarded Mitchell 369 days of presentence credits (185 actual credits and 184 conduct credits). It also imposed various fines and fees. Finally, the court found that Mitchell’s presentence credits exceeded his one-year sentence, set a monetary value for these credits at $500, and then credited this amount against several of the fines and fees that had been imposed.

Mitchell was ably represented by counsel throughout the proceedings, substantial evidence supports his convictions, and no error appears in the jury instructions or in the sentencing proceedings. We conclude that there are no meritorious issues to be argued on appeal.

The order granting probation is affirmed.

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Humes, P.J.

We concur:

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Margulies, J.

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Banke, J.

People v. Mitchell A154093