Filed 10/21/13 P. v. Otero 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,

         Plaintiff and Respondent,                                                     F065417

                   v.                                                    (Super. Ct. No. F11906686)

RAYMOND OTERO III,                                                                   OPINION

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. James
Petrucelli, Judge.
         Donn Ginoza, 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 Wiseman, Acting P.J., Cornell, J., and Franson, J.
       A jury convicted appellant, Raymond Otero III, of second degree robbery (Pen.
Code, §§ 211, 212.5, subd. (c)),1 and in a separate proceeding, the court found true
allegations appellant had suffered a prior conviction that qualified as both a prior serious
felony conviction (§ 667, subd. (a)) and as a ―strike‖2 and that appellant had served four
separate prison terms for prior felony convictions (§ 667.5, subd. (b)). The court imposed
a prison term of 19 years, consisting of the following: The five-year upper term on the
instant offense, doubled under the three strikes law for a total of 10 years (§§ 667, subd.
(e)(1); 1170.12, subd. (c)(1)); five years on the prior serious felony enhancement; and one
year on each of the four prior prison term enhancements. The court also imposed a
restitution fine of $4,800 under section 1202.4, subdivision (b) (section 1202.4(b)) and a
―parole revocation restitution fine‖ (§ 1202.45) in the same amount. The court stayed the
latter fine pending successful completion of parole.
       Appellant‘s appointed appellate counsel has filed an opening brief which
summarizes the pertinent facts, with citations to the record, raises no issues, and asks that
this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.)
       Appellant, in response to this court‘s invitation to submit additional briefing, has
filed a brief in which he makes the contentions we discuss below. We affirm.
                                          FACTS
       On November 19, 2011 (November 19), at approximately 9:00 a.m., Jose Montes
was walking near Roosevelt High School in Fresno when he ―turned back‖ and saw a




1      All statutory references are to the Penal Code.
2      We use the term ―strike‖ as a synonym for ―prior felony conviction‖ within the
meaning of the ―three strikes‖ law (§§ 667, subds. (b)-(i); 1170.12), i.e., a prior felony
conviction or juvenile adjudication that subjects a defendant to the increased punishment
specified in the three strikes law.


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person, who he identified in court as appellant, riding a bicycle behind him.3 Montes
continued walking and when he passed the school‘s football field he saw appellant riding
toward him. When appellant ―[got] close‖ to Montes, he (Montes) said ―hi,‖ but
appellant did not respond and Montes kept walking.
       At that point, appellant began riding in circles around Montes, who continued
walking. Montes became afraid. The street was ―empty‖ and there were no other people
around. Appellant ―kept going behind‖ Montes and as Montes was crossing the street,
appellant ―said something about money[.]‖ Montes testified he did not remember if
appellant said ―do you have money[?]‖ or ―give me the money.‖ Montes responded to
appellant, untruthfully, that he did not have any money, and kept walking. Eventually—
Montes did not remember how many times appellant circled him—appellant ―got closer‖
to Montes, stopped approximately three feet in front of Montes and ―parked‖ his bicycle.
Appellant, who was wearing a ―zippered‖ sweater, then ―opened‖ his sweater, at which
point Montes ―thought [appellant] had something down there ….‖ However, Montes
testified, ―I didn‘t see anything.‖ He saw neither a blade nor a knife handle. Montes
recalled telling the investigating police officer, Officer Ponek, that he saw a handle, but
later, at home, he ―started thinking about what happened,‖ ―everything cleared up in [his]
mind,‖ and he realized he ―never [saw] anything.‖ Montes told the officer he had seen a
knife handle because he ―was really nervous, really anxious, really afraid, really mad.‖
       After stopping in front of Montes, appellant ―just look[ed] at [Montes],‖ his
sweater open. Montes was afraid he would ―[g]et beat up or something,‖ so he took a
$20 bill out of his pocket and handed the money to appellant. At that point, appellant
said ―‗gracias‘‖ and ―left.‖


3      Except as otherwise indicated, our factual statement is taken from Montes‘s
testimony.


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       Appellant continued walking, and after approximately 10 to 15 minutes he arrived
at a tire shop where ―his friends‖ were and told them what had happened. Initially,
Montes did not want to report the incident to the police because ―It was just $20,‖ but, at
his friends‘ urging, he did so.
       Appellant never ―threatened‖ Montes, nor did appellant ―ever show [Montes]
anything.‖
       A recording of Montes‘s 911 call was played for the jury. A transcript of the 911
call provided to the jury indicated appellant stated, ―… a guy just came over to me and he
(inaudible) a knife and pointed to me and he took my money‖; the ―guy‖ had a kitchen
knife that he ―put it on my belly,‖ and ―He asked me for the money so I gave it to him.‖
       Fresno Police Officer David Ponek testified he interviewed Montes on
November 19, at which time Montes told him the following: Appellant said to Montes,
―give me your money.‖ Montes did not see a blade but he saw the handle of what he
―felt‖ was a kitchen knife, ―sticking out of [appellant‘s] left pants pocket.‖
       Fresno Police Officer Manuel Maldonado testified to the following: He responded
to a report of a robbery and arrested appellant shortly after 10:00 a.m. on November 19
near Roosevelt High School. The officer searched appellant‘s person and found two $20
bills and one $10 bill. He did not find any weapons in appellant‘s possession, nor was
any knife found in the ―immediate area.‖
       Montes further testified to the following: His memory was better at the time he
testified than on the day of the incident. He had been drinking the night before the
incident and he had ―maybe a hangover a little bit ….‖ He did not want to be in court,
testifying.
       A photograph taken of appellant at the time of booking and introduced into
evidence showed appellant wearing a red shirt and blue denim jacket, but not a sweater.
       The defense called no witnesses.

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                                         DISCUSSION
       Appellant first argues he was denied his right to the effective assistance of counsel
at trial. However, he provides no information at all regarding his counsel‘s conduct at
trial. We therefore reject this claim.
       Appellant next argues the trial court erred in admitting evidence of ―prior acts.‖
However, no such evidence was adduced at trial. Therefore, this claim also fails.
       Appellant also contends he does not have the ability to pay the $4,800 restitution
fine under section 1202.4(b), and therefore that fine should be stricken. Appellant did not
raise this contention below, however, and therefore he may not do so on appeal. (People
v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469; cf. People v. McCullough (2013) 56
Cal.4th 589, 597 [appellate challenge to sufficiency of evidence supporting booking fee
forfeited by failure to raise claim at sentencing].)
       Finally, appellant raises a series of points that, as best we can determine, amount
to a claim that Montes‘s testimony was not credible and therefore the evidence was
insufficient to support appellant‘s conviction. This claim too is without merit.
       ―Robbery is the felonious taking of personal property in the possession of another,
from his [or her] person or immediate presence, and against his [or her] will,
accomplished by means of force or fear.‖ (§ 211.) ―‗The element of fear for purposes of
robbery is satisfied when there is sufficient fear to cause the victim to comply with the
unlawful demand for his property.‘ [Citations.] … [¶] … [¶] Intimidation of the victim
equates with fear. [Citation.] An unlawful demand can convey an implied threat of harm
for failure to comply, thus supporting an inference of the requisite fear.‖ (People v.
Morehead (2011) 191 Cal.App.4th 765, 774–775.)
       ―In addressing a challenge to the sufficiency of the evidence supporting a
conviction, the reviewing court must examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial evidence—

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evidence that is reasonable, credible and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate
court presumes in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.‖ (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
We resolve neither credibility issues nor evidentiary conflicts. (People v. Zamudio
(2008) 43 Cal.4th 327, 357.)
       Under the principles summarized above, Montes‘s testimony, the testimony of
Officer Ponek and the 911 call constituted substantial evidence appellant unlawfully took
$20 from Montes by inducing fear in Montes. Therefore, the evidence was sufficient to
support appellant‘s robbery conviction.
       Following independent review of the record, we have concluded that no
reasonably arguable legal or factual issues exist.
                                      DISPOSITION
       The judgment is affirmed.




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