People v. Waters CA1/2

Filed 2/4/14 P. v. Waters CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A134789 v. RICHARD BELDON WATERS, (Contra Costa County Super. Ct. No. 51001734) Defendant and Appellant.

A jury found defendant Richard Beldon Waters guilty of two counts of armed robbery involving the personal use and discharge of a firearm (Pen. Code, §§ 211, 212.5, subd. (c), former §12022.53, subds. (b) & (c)). After determining that defendant had had three prior felony convictions (id., § 667.5, subd. (b)(1)), two of which qualified as serious (id., § 667, subd. (a)(1)) and strikes (id., § § 667, subds. (b)-(i), 1170.12), and denying defendant’s motion to strike his strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, the trial court sentenced him to state prison for an aggregate term of 55 years to life. Defendant’s sole contention on this timely appeal is that he was deprived of his constitutional right to the effective assistance of counsel because his trial attorney failed to investigate and present an alibi defense. We conclude this contention is without merit, and affirm. BACKGROUND The evidence adduced at trial showed that on the afternoon of October 3, 2009, two men entered Matthew Fink’s bar where, in addition to Fink, an employee and two customers were present. One of the men was wearing a bandana as a mask. This man

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brandished a gun at Fink; the other man displayed a knife. Money was demanded and surrendered. The man with the bandana fired a shot at Fink just before the two men ran out of the bar, and drove away in a pickup truck. The truck, and defendant, were located by police within an hour. The engine area was emanating heat, indicating recent use. Defendant matched the broadcast description (“white male wearing a khaki shirt, long sleeve, and blue jeans”). The truck was registered to defendant, and its keys were found on defendant (who was searched because he was on parole). Defendant’s DNA was found on a bandanna wrapped around the gun in the truck’s engine compartment. Only one of the gun’s cartridges had been fired. A sheath knife and badge with defendant’s name on it were found under the truck’s seat. Fink tentatively identified the truck (“it looked like”), and more positively identified the bandana as the one worn by the gunman. When first confronted with defendant (whom he knew but did not then recognize), Fink made a tentative identification: defendant’s height was “similar,” and he “could be the . . . guy with the mask.” When later told that police had arrested defendant for the robbery, Fink responded, “it looks like you got the right guy,” in part because he associated defendant’s way of walking with “when that guy walked out with the gun on me, you don’t forget that.” Fink’s brother, who was in the bar, was unable to make an identification of defendant, but he did think the bandanna was the one worn by the gunman. Defendant was tested on the day of his arrest for the presence of gunshot residue, and none was found on him. But defendant’s expert did concede that “a gun could . . . have been fired by a person even if no gunshot residue is found.” No usable fingerprints were found on the knife. A fingerprint on the gun was not defendant’s. DNA from several other persons was also on the bandanna. Defendant did not testify. As noted, the jury convicted defendant, following which he moved for a new trial on several grounds, one of which was that he “was denied effective assistance of counsel because his attorney withheld a defense that was requested by him.” The motion was supported with a declaration by defendant, the gist of which was that at the time of the