People v. Smith CA4/2

Filed 1/6/23 P. v. Smith 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E078997
v. (Super.Ct.No. RIF1903448)
MARCEL SHA RON SMITH, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,
Judge. Affirmed.
Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and respondent.
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STATEMENT OF THE CASE
On December 9, 2020, an information charged defendant and appellant Marcel
Sha Ron Smith with robbery under Penal Code1 section 211 (count 1), and possession of
a firearm after having been convicted of a felony and while addicted to a narcotic drug
under section 29800, subdivision (a)(1) (count 2). The information also alleged that:
(1) in the commission of the robbery, defendant was personally armed with a firearm
under section 12022.53, subdivision (b), and section 1192.7, subdivision (c)(8);
(2) defendant was ineligible for probation for count 1 pursuant to section 12022.53,
subdivision (g); and (3) defendant had been previously convicted of seven serious
offenses within the meaning of section 667, subdivision (a), and seven prior strike
offenses within the meaning of section 667, subdivisions (c) and (e)(2)(A), and section
1170.12, subdivision (c)(2).
On March 29, 2022, defendant waived his right to a jury trial and requested a court
trial. Moreover, the following day, defendant waived his right to a jury determination on
all of the sentencing allegations. That same day, midtrial, defendant waived a court trial
as to the sentencing allegations and admitted that they were true.
After the prosecution rested, the trial court granted the prosecutor’s motion to
dismiss six of the seven serious prior felony allegations—allegations two through seven.
1 All further statutory references are to the Penal Code unless otherwise specified
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After the presentation of evidence and arguments of counsel, the trial court found
defendant guilty of robbery, as charged in count 1, but not guilty of possession of a
firearm (count 2). The court also found not true the personal arming allegation on the
robbery count.
At sentencing on April 28, 2022, the trial court granted defendant’s motion to
strike six of his seven prior strike offenses pursuant to People v. Romero (1996) 13
Cal.4th 497. The court declined to exercise its discretion to strike the remaining serious
felony allegation under section 667.
Thereafter, the trial court sentenced defendant to 11 years in prison, as follows:
(1) three years (midterm) for the robbery count, doubled due to defendant’s prior strike
conviction, for a total of six years; and (2) a five-year consecutive term for the true
finding as to the allegation that defendant had suffered a prior serious felony conviction
pursuant to section 667. The trial court then waived all non-mandatory fines and fees.
On May 12, 2022, defendant filed a timely notice of appeal.
FACTUAL AND PROCEDURAL HISTORY
The victim testified at defendant’s trial. She stated that on August 20, 2019, she
was working at a restaurant in Moreno Valley. The victim testified that around 10:45
p.m. she was taking orders at a cash register when defendant walked in and ordered two
tacos. When the victim opened the cash register and asked defendant to pay, he removed
a wallet from his pocket and then pointed a gun at her.
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Defendant told the victim to give him the money, then pointed the gun at her head.
Defendant took about $200 from the cash drawer. The victim described the gun as being
black; she stated the gun did not look like a BB gun. After defendant took the money
from the cash drawer he left the restaurant, leaving his wallet behind on the counter.
Defendant then drove away in a white vehicle.
An audio recording of the victim’s 911 call was played for the judge. During the
call, the victim told the dispatcher that the restaurant had just been robbed , and the robber
had left his identification card at the restaurant. The victim gave the dispatcher a physical
description of defendant and read his name from the identification card. During the trial,
the victim also identified defendant in the video surveillance footage of the incident,
which was played for the trial judge.
On cross-examination, the victim admitted that she did not know if the black gun
used by defendant was a BB gun.
The defense called Joseph Felbab as a witness; he was one of the attorneys
appointed to represent defendant in the trial court proceedings. Felbab testified that he
attempted to obtain video surveillance footage from the date of the incident of defendant
purchasing a BB gun at a Big 5 Store. Although Felbab was unable to obtain the video
footage, he got a copy of a receipt from the store. The receipt showed that a customer
purchased a BB gun, using cash, shortly before the charged events. The store manager
testified that he had retrieved the receipt, which showed that the purchase of the BB gun
was made at about 7:52 p.m. He described the purchased BB gun as about 5 inches by
4.5 inches and looked like a real firearm.
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Defendant testified that he was 46 years old and lived most of his life in Los
Angeles. As a young adult, he developed a cocaine addiction and began robbing stores to
get money to buy cocaine. In 1997, defendant was charged with several counts of
robbery. He entered a negotiated plea agreement wherein he received a sentence of 26
years four months in prison. He also admitted to using a firearm.
Defendant went on to testify that during his prior offenses, he engaged in a pattern
of obtaining a BB gun from a Big 5 Store and using the BB gun to commit a robbery, and
then disposing of the BB gun. Defendant testified that he occasionally used a real gun
that he borrowed from a friend; he never fired a gun.
Beginning in 2011, during defendant’s prison term, he turned his life around and
became a Christian. When defendant was released on parole in 2018, he obtained
employment at a Harbor Freight store. However, he began drinking and lapsed into
alcoholism. By July 2019, defendant had left his job and worked as a Door Dash driver.
About a week before the charged incident, defendant was involved in a traffic accident
that caused significant damage to his car. Although defendant was able to make a partial
payment for the repairs, he still owed the shop $700. Defendant borrowed his girlfriend’s
car to continue working as a Door Dash driver. However, the girlfriend’s car began to
malfunction. A mechanic told defendant that it would cost $4,000 to repair his
girlfriend’s car. Defendant tried to borrow money from friends and relatives but he was
only able to obtain $50.
Defendant admitted that, in a panic, he committed the robbery charged in this case
because he needed money to purchase a cheap used car. On the date of the robbery,
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defendant purchased a BB gun from a Big 5 Store and used it during the robbery. During
the robbery, defendant tipped the BB gun down to hide that it was not a real gun.
Defendant was so nervous during the robbery that he left his wallet on the counter at the
restaurant. His wallet contained about $700 in cash. Defendant got $213 from the
robbery.
DISCUSSION
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 has requested this
court to undertake a review of the entire record. Pursuant to Anders, counsel identified
the following issue to assist the court in its search of the record for error:
“Did the trial court properly overrule [defendant]’s objection to admission of the
statements on the 911 tape on grounds that the prosecutor had failed to provide a proper
foundation?”
We offered defendant an opportunity to file a personal supplemental brief, and he
has not done so.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the record for potential error. We are satisfied that defendant’s
attorney has fully complied with the responsibilities of counsel and no arguable issue
exists. (Id. at p. 126; People v. Wende, supra, 25 Cal.3d at pp. 441-442.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J.
We concur:
CODRINGTON
J.
FIELDS
J.
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