Filed 11/6/15 P. v. Harrell 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication
                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E063431

v.                                                                       (Super.Ct.No. FWV036332)

JOSHUA HARRELL,                                                          OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Bridgid M.

McCann, Judge. Affirmed.

         Joshua Harrell, in pro. per.; Susan S. Bauguess, under appointment by the Court of

Appeal, for Defendant and Appellant.

         No appearance for Plaintiff and Respondent.

                                       STATEMENT OF THE CASE

         On December 28, 2005, an information charged defendant and appellant Joshua

Harrell with one count of second degree robbery under Penal Code section 211. On




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March 7, 2006, a jury found defendant guilty as charged. On April 5, 2006, the trial court

sentenced defendant to the low term of two years.

      On January 14, 2015, defendant filed a motion to have his felony designated as a

misdemeanor under the newly enacted Penal Code section 1170.18 (Proposition 47). The

People requested that the court summarily deny the motion because defendant’s

conviction under Penal Code section 211 was excluded from relief under Proposition 47.

On April 9, 2015, the trial court determined that a violation of Penal Code section 211

was ineligible for relief under Penal Code section 1170.18, and denied defendant’s

motion. On April 28, 2015, defendant filed a timely notice of appeal.

                              STATEMENT OF FACTS1

      “Through the use of a Korean translator, Jung Hee Kim (‘the victim’) testified that

on the morning of December 8, 2005, she went shopping at the Home Goods store in

Rancho Cucamonga. While looking at some blankets on the shelves, the victim

momentarily left her purse unattended in her shopping cart’s child seat. When the victim

turned back around, she realized her purse was gone.

      “She looked up from the shopping cart and saw defendant walking away. She

caught up to him and said that her ‘hand bag [had] disappeared.’ The victim knew

defendant had her purse tucked away in his jacket, so she tried to stop him from leaving

the store. Walking along side defendant, the victim screamed, “‘help me, help me.’”



      1  The Statement of facts is taken from our opinion in the underlying appeal.
(People v. Harrell (May 10, 2007, E040439) [nonpub. opn.].)


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When she actually saw the purse inside defendant’s jacket, she grabbed the left side of

the jacket.

         “At this point, the victim’s testimony regarding the events became confusing. The

victim testified that when she grabbed defendant’s jacket, he ‘just snatched it away from

[the victim] [and] then ran away.’ The victim clarified that defendant never actually

touched or pushed her, but she fell down after grabbing defendant’s jacket. The clearest

description from the victim was that defendant ‘just snatched [his jacket] so he could get

away.’

         “Shortly thereafter, the police apprehended defendant and returned the victim’s

purse.”

                                       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 requesting this court

to undertake a review of the entire record.

         We offered defendant an opportunity to file a personal supplemental brief, and he

has done so. On October 26, 2015, defendant filed a three-page handwritten brief. In his

brief, defendant appears to be arguing that his conviction for robbery under Penal Code

section 211 is not supported by substantial evidence. Defendant contends that when he

“took the purse from the abandoned shopping cart there was no intent or purpose with the

added element of force, fear, or threats. [Penal Code section] 211.” Without the added


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element of force or fear, defendant claims his offense was a simple theft. Hence,

defendant claims that his conviction for robbery, which he claims was a theft, should

have been reduced to a misdemeanor. Defendant’s contention is without merit.

Defendant, in his appeal from the underlying conviction, made an identical argument. In

that appeal, defendant challenged the sufficiency of the evidence in establishing the

“force” element in the crime of robbery. We found that substantial evidence supported a

finding of force and affirmed defendant’s conviction for robbery. (People v. Harrell,

supra, E040439, pp. 5-6, 10.) On this appeal, defendant is foreclosed from challenging

his conviction for robbery again. Therefore, because defendant was convicted for

robbery under Penal Code section 211, he is ineligible to have his conviction reduced

from a felony to a misdemeanor under Penal Code section 1170.18.

       Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

conducted an independent review of the record and find no arguable issues.

                                        DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                        MILLER
                                                                                         J.

We concur:

RAMIREZ
                              P. J.

KING
                                   J.


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