People v. Adzhigirey CA3

Filed 2/11/14 P. v. Adzhigirey CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C071734

Plaintiff and Respondent, (Super. Ct. No. 03F03603)

v.

ANATOLIY ADZHIGIREY,

Defendant and Appellant.

A complaint charged defendant Anatoliy Adzhigirey with second degree robbery (Pen. Code, § 211).1 At the preliminary hearing, based on the complaining witness’s statement that defendant was not involved in the crime, the prosecutor requested the case

1 Undesignated statutory references are to the Penal Code.

1

be dismissed. The trial court granted the request. More than eight years later, defendant filed a motion for a finding of factual innocence. The trial court denied the motion. Defendant appeals the trial court’s denial of his motion. We shall affirm.

FACTUAL BACKGROUND

In April 2003, Sergei Smolya reported he had been robbed by defendant and his friends while standing in front of apartment number 34. Defendant and his brother Andre lived in apartment 34. Smolya reported defendant and other men demanded Smolya give them money for drugs. When Smolya refused, one man held him in a headlock and the others punched him. Smolya reported defendant reached into Smolya’s pants pocket and removed $30 and the men also stole his backpack, digital video camera, and depression medication. Smolya used a pay phone to call police and saw one of his assailants throw his backpack into a dumpster. He went to retrieve his backpack and the men attacked him again. Smolya identified his assailants as defendant, Vaycheslav Nechitaylo, Ivan B., and another individual.

Two other witnesses saw three men beating Smolya. They were able to identify Nechitaylo as one of those men. One of the witnesses, the apartment complex security guard, advised law enforcement that two of the robbery suspects were in the apartment complex in a black Mitsubishi. Officers stopped the car. There were two people in the car, defendant was the driver and Ivan B. was the passenger. Defendant’s brother, Andre, was identified by the complex security officer as having helped the suspects flee the scene before law enforcement arrived. Another witness, the apartment manager’s husband, saw Smolya placed in a headlock and saw Nechitaylo reach into Smolya’s pocket, while the other men hit and punched Smolya.