People v. Todek CA2/6

Filed 11/20/13 P. v. Todek CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B245788 (Super. Ct. No. 1411264) Plaintiff and Respondent, (Santa Barbara County)

v.

JESSE DANIEL TODEK,

Defendant and Appellant.

Jesse Daniel Todek appeals the judgment following his conviction by jury of second degree robbery (Pen. Code, §§ 211, 213, subd. (a)(2)).1 Appellant waived jury on the prior prison term allegation (§ 667.5, subd. (b)), which the trial court found to be true. The court sentenced appellant to six years in state prison, comprised of five years for the conviction and one year for the prior prison term enhancement. It also ordered him to pay a $10,000 restitution fine (§ 1202.4, subd. (b)), and imposed and stayed a $10,000 parole revocation fine (§ 1202.45). Appellant was granted 185 days of presentence credit. Appellant correctly asserts the prosecutor erred by suggesting during closing argument that the defense bore the burden of proof. Any harm, however, was

1 All statutory references are to the Penal Code.

cured by defense counsel's prompt objection and the trial court's subsequent admonition to the jury. We affirm. FACTS On May 24, 2012, at approximately 11:00 p.m., Joel Ochoa started walking home from his girlfriend's house in Lompoc. A short while later, he was approached by appellant and another man, who were carrying beers and staggering. Appellant said something in English, which Ochoa thought was a request for cigarettes. A native Spanish speaker, Ochoa knew "some" English, mostly common words. Ochoa handed appellant a pack of cigarettes, which appellant struck out of his hand. Still speaking in English, appellant asked Ochoa, "Where are you from?" Believing he was asked if he was in a gang, Ochoa responded that he "was a paisa," meaning he was not affiliated with a gang. Appellant demanded money, saying in English, "Where's the money, fool?" After Ochoa refused to give him money, appellant hit him and threw him to the ground. When appellant was unable to find Ochoa's wallet, he made a motion that Ochoa interpreted as reaching for a weapon. Fearing for his life, Ochoa handed over his wallet, which contained over $100 in cash and two keys. Appellant and his companion ran away. Ochoa called the police on his cell phone. Based on Ochoa's description, the police found appellant a few blocks away. Ochoa identified appellant as his attacker and also identified certain items in appellant's possession, including the pack of cigarettes, keys and a $100 bill. Ochoa suffered scrapes on his arm and leg, consistent with the described attack. Appellant presented no evidence on his behalf. DISCUSSION Appellant contends his conviction must be reversed because the prosecutor committed prejudicial misconduct. We disagree. During her closing argument, appellant's trial counsel contended appellant was guilty of theft, but not robbery. She argued that Ochoa was confused and scared by