People v. Mitchell CA2/8

Filed 9/19/14 P. v. Mitchell CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B251620

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA127004) v.

STEVEN MITCHELL,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. John A. Torribio, Judge. Affirmed.

Jessica Coffin Butterick, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_______________________

Defendant Steven Mitchell appeals from the judgment entered following a jury trial which resulted in his conviction of two counts of first degree robbery, two counts of assault with a firearm and criminal threats. Based on our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, 441 (Wende), we affirm both convictions.

FACTUAL AND PROCEDURAL HISTORY

Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008) 43 Cal.4th 327, 357-358 (Zamudio)), the evidence established that two armed men wearing ski masks broke through the locked screen door of a home on the 9000 block of Main Street in the City of Bellflower on October 12, 2012. One of the residents was in the bathroom with her cell phone when the break-in occurred and was able to call 911. Before the police arrived, a third masked man entered, forced the victims onto the ground and duck taped their arms behind their backs. Not long after the three men left the house, defendant and Jones were discovered hiding in nearby bushes. One of the two victims identified them as the intruders in a field identification. Defendant and Jones were jointly charged by second amended information with two counts of first degree robbery (§ 211) (counts 1 and 4); two counts of assault with a semiautomatic firearm (§ 245, subd. (b)) (counts 2 and 5); and criminal threats (§ 422, subd. (a)) (count 3); enhancements for personal firearm use were also alleged (§§ 12022.5, subds. (a) & (d); 12022.53, subd. (b)).1 On March 28 and July 15, 2013, defendant’s two Marsden motions were denied. On August 15, 2013, the trial court ordered a joint trial with separate juries for defendant and Jones. Defendant’s motions to exclude a gun found in the bushes and to suppress his custodial statements to police were heard on August 19 and 20, 2013. The trial court