Filed 3/3/15 P. v. Fox CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067380
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. VCF266744)
                   v.

NIKKI FOX,                                                                               OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tulare County.
H. N. Papadakis, Judge. (Retired Judge of the Fresno Super. Ct. assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.)
         Kendall Dawson Wasley, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-

*        Before Detjen, Acting P.J., Franson, J. and Smith, J.
                     PROCEDURAL AND FACTUAL SUMMARY
       Appellant Nikki Fox was charged in an information with a felony count of second
degree robbery (Pen. Code, § 211, count 1) (undesignated statutory references are to the
Penal Code) and being a felon in possession of a firearm (§ 29800, subd. (a), count 2).
The complaint alleged in count 1 an allegation that appellant personally used a firearm in
the commission of robbery (§§ 12022.53, subd. (b) & 12022.5, subd. (a)) and use of a
firearm (§ 1203.06, subd. (a)(1)). The information also alleged that appellant was
released on bail when she reoffended.
       A jury trial commenced on April 2, 2013.1 On April 4, 2013, the jury found
appellant guilty of counts 1 and 2 and found true the allegations that appellant used a
firearm during the commission of the robbery. On May 21, 2013, the trial court sentence
appellant to prison for three years on count 1, a consecutive term of 10 years for the
firearm enhancement, a consecutive term of eight months for being a felon in possession
of a firearm, and a consecutive term of two years for the on-bail enhancement.
Appellant’s total sentence in the instant action is 15 years 8 months.2 Appellant was
granted 400 days of credits for time in actual custody, conduct credits of 60 days, and
total custody credits of 460 days.
       Appellate counsel has filed a brief seeking independent review of the case by this
court pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
                                            FACTS
Prosecution Evidence
       At 7:00 p.m. on April 14, 2012, Vickie Lucas was working at Cigarettes 4 Less.
Appellant was a regular customer. Lucas was working alone. Appellant entered the

1       Appellant waived her right to a jury trial for the on-bail enhancement, which was found
true in a bifurcated proceeding at conclusion of the trial.
2      Appellant was also sentenced to consecutive prison terms of one year eight months on
two other unrelated criminal actions for a total prison term of 17 years 4 months.


                                               2.
store, threw a purple and gold Crown Royal bag on the counter, and demanded money.
Appellant said, “I gotta do it, hurry up.” Lucas moved to the register and replied, “Please
don’t do this, you don’t have to do this, please don’t do this.” Lucas pushed a panic
button next to the register several times as she was talking. Appellant waived a black gun
and said, “Hurry up before it gets ugly.” Lucas opened the register and gave appellant
money. Appellant placed the money in the bag and ran out of the store.
       Lucas locked the store and called 911. Lucas reviewed video footage of
appellant’s robbery with the jury, which was admitted into evidence. Visalia Police
Officer Michael Patrick Bischel, Jr., responded to the emergency call, spoke to Lucas
after the incident, and observed her to be frightened and shaken up.
       Blanca Gomez worked for the Marco Polo Hotel and knew appellant because she
rented a room at the hotel. Around April 10, 2012, appellant asked Gomez if she could
use Gomez’s cell phone. Gomez told appellant it was in the laundry room. Appellant
told Gomez she could not go to the laundry room “because I have this.” Gomez saw the
handle of a black gun in appellant’s sweater. Gomez could not tell the difference
between a real gun and a fake one.
       When appellant was arrested, she told Detective Nelson that she threw the gun in
the trash. The prosecution entered into evidence a jail call between appellant and her
daughter. During the telephone conversation, appellant said: “Do you know how stupid I
feel[?] I feel so stupid, and then what I did, an armed robbery. Oh my God, for reals.
Really. Really, seriously, really, come on that’s not me, you know that. That’s not me.
It was the drugs.”
Defense Evidence
       Lucas had previously purchased clothing and hair products from appellant. When
asked by Detective Nelson if she knew whether the property was stolen, Lucas told him
she was on a limited budget, needed some of the items, and that she was also helping
appellant.

                                            3.
       Appellant testified that she had known Lucas for about eight months. They saw
each other at Cigarettes 4 Less every day or every couple of days. Appellant and Lucas
would see each other outside of Cigarettes 4 Less. They would shop together and discuss
their children. According to appellant, three weeks earlier, she and Lucas discussed
staging a robbery. According to appellant, Lucas said she had been robbed many times
before and it needed to look real because she did not want to lose her job. The robbery
was supposed to happen a week earlier than it did, but appellant was under the influence
and “just wasn’t really into it.”
       The morning of the theft, when Lucas was not working, appellant went to
Cigarettes 4 Less to pick up a plastic gun Lucas had left for appellant next to the front
door. Later that day, appellant went to the store, placed the Crown Royal bag on the
counter, and asked Lucas if she was ready. Lucas hesitated and said she was not sure she
could do it. Appellant explained that she had to make up her mind because appellant
would have to go hustle. Appellant admitted waiving a plastic dart gun during the theft.
Appellant gave the toy gun to the child of a friend.
       After appellant left the store, she was standing next to a donut shop. Lucas came
outside, looked at appellant, and appellant said she would see Lucas later. The evening
of the theft, Lucas and appellant met in a room at Motel 6 that was rented by Melvin
Keehn. Appellant said she gave Lucas $100 of the $180 taken from the theft.3
       Appellant denied possessing or ever holding a real gun. During a jail conversation
on April 20, 2012, appellant told another caller that she did not have a gun. Appellant
explained her jail conversation with her daughter as only an admission of the allegations
with which she was charged. During a jail conversation on May 12, 2012, appellant said
“they never recovered a gun or nothing and they said I had a gun, but I didn’t have no


3      In addition to instructions on robbery, the jury was instructed on the lesser offenses of
attempted robbery, theft by larceny, and petty theft.


                                                4.
fucking gun, I know you know I don’t fuck with guns.” Appellant told Detective Nelson
that the theft was planned in advance, she used a toy gun, and Lucas was given a share of
the money in a hotel room.
                             APPELLATE COURT REVIEW
       Appellant’s appointed appellate counsel has filed an opening brief that
summarizes the pertinent facts, raises no issues, and requests this court to review the
record independently. (Wende, supra, 25 Cal.3d 436.) The opening brief also includes
the declaration of appellate counsel indicating that appellant was advised she could file
her own brief with this court. By letter on January 30, 2014, we invited appellant to
submit additional briefing. To date, she has not done so.
       After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.
                                     DISPOSITION
       The judgment is affirmed.




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