People v. Sapp CA3

Filed 10/16/13 P. v. Sapp CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C070137

Plaintiff and Respondent, (Super. Ct. No. 10F07656)

v.

MAURICE SAPP,

Defendant and Appellant.

A jury convicted defendant Maurice Sapp of second degree robbery (Pen. Code, § 211), misdemeanor possession of narcotics paraphernalia (Health & Saf. Code, § 11364), and unauthorized use of another person’s identifying information (Pen. Code, § 530.5, subd. (a)). In a bifurcated proceeding, the trial court found that defendant had sustained five prior convictions, including one strike (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and two serious felonies (Pen. Code, § 667, subd. (a)), and had served three prior prison terms (Pen. Code, § 667.5, subd. (b)).

1

Sentenced to 24 years four months in state prison, defendant appeals and contends the prosecutor committed misconduct and defendant’s trial counsel was ineffective in failing to object. We affirm the judgment. FACTS AND PROCEEDINGS Defendant was accused of stealing the victim’s bank and credit cards, then attempting to use one or more of them at a nearby market. The market’s surveillance system recorded defendant on videotape, but the police failed to obtain the videotape and it was not preserved for trial. The only evidence offered from the videotape was a screen shot taken by an officer’s cell phone. Around 11:30 a.m. on November 18, 2010, Janet M., using a walker, walked from her Oak Park apartment to the Sacramento Food Bank. She hung a pouch on the walker that held her identification card, her credit union Visa card, her Social Security card, her Target card, and other personal property. After getting groceries at the Food Bank, Janet M. started home. As she walked down 33rd Street between Broadway and Second Avenue, a man came up behind her, knocked her down, and took the bag of groceries from her walker. Finding only groceries in the bag, he returned and grabbed her pouch, then ran off. She saw that he was “well built,” had short hair and facial hair resembling a goatee, and wore dark jeans and a dark t-shirt. After Janet M. got home, she asked her apartment manager to call the police. The recorded 911 call was played at trial. According to the transcript provided to the jury, Janet M. said the robber was a black man, “probably” in his 30s, “probably” six feet tall and stocky, wearing a dark shirt and dark pants. She thought he had a goatee, but was not sure. Sacramento Police Officer Jeff Kuhlmann arrived at Janet M.’s apartment around 1:00 p.m. and spoke to her for 20 or 25 minutes. She described the robber to him.