People v. Vest CA2/3

Filed 11/24/14 P. v. Vest CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B250811

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA407256) v.

JAMES VEST,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Barbara R. Johnson, Judge. Affirmed in part, reversed in part and remanded with directions. Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Timothy M. Weiner and Stephen D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant James Vest was convicted of second degree robbery (Pen. 1 Code, § 211 ) and indecent exposure (§ 314), following a jury trial. The court found true the further allegations that defendant had previously been convicted of two serious and/or violent felonies (§§ 1170.12, subd. (b)(2)(A), 667, subd. (a)(1)). On August 16, 2013, defendant was sentenced to 35 years to life on the second degree robbery conviction, which included two five-year enhancements pursuant to section 667, subdivision (a)(1), and a concurrent term of six months on the indecent exposure conviction. He was awarded 203 days of actual custody credit and 203 days of conduct credit. Defendant contends substantial evidence does not support the second degree robbery verdict and the court’s failure to instruct on petty theft, a lesser included offense of robbery, was prejudicial error. Respondent contends, and defendant concedes, the sentence should be modified to reflect the limitation on local conduct credit for serious or violent felonies. We conclude substantial evidence supports the second degree robbery verdict and defendant waived the contention that a petty theft instruction should have been given. We vacate the trial court’s calculation of defendant’s conduct credit, recalculate the conduct credit, remand with directions, and, in all other respects affirm the judgment. FACTS 1. Prosecution case. On January 24, 2013, Maribel Piedra was at work as a cashier in the convenience store of a gas station on Adams and La Brea. She sat at the window in a glass-enclosed cashier’s booth. Defendant hung around outside, asking people for money. He took pictures of Piedra with his cell phone, and, when she told him to stop, he left. Returning minutes later, defendant entered the store and persuaded Piedra to open the door of the booth by stating he had something important to tell her. When Piedra opened the door, defendant reached in and punched her in the face with a closed fist. Frightened, she quickly shut the door, which locked. Defendant stepped out of the store for a few moments, returned, and tried to pry the door open. Piedra panicked, because she believed 1 All further references are to the California Penal Code unless otherwise specified.