People v. Whitfield CA2/2

Filed 11/4/15 P. v. Whitfield CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B255148

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA096558) v.

DAVION TYRONE WHITFIELD,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Tomson T. Ong, Judge. Affirmed.

Jeffrey J. Douglas, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Noah P. Hill, Garrett A. Gorlitsky, and Blythe Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Davion Tyrone Whitfield (defendant) appeals his robbery conviction, claiming that it was unsupported by substantial evidence. Finding no merit to defendant’s contention, we affirm the judgment. BACKGROUND Defendant was charged with second degree robbery in violation of Penal Code section 211.1 The information also alleged that defendant personally used a deadly and dangerous weapon, a knife, in the commission of the offense, within the meaning of section 12022, subdivision (b)(1). The information further alleged pursuant to 667, subdivision (a)(1), that defendant had suffered a prior serious felony conviction which qualified as a strike within the meaning of the “Three Strikes” law (§§ 667, subd. (b)-(i) & 1170.12, subd. (a)-(d)). A jury found defendant guilty of second degree robbery as charged, but found not true the allegation that defendant personally used a deadly and dangerous weapon. In a bifurcated proceeding, defendant admitted the prior conviction allegations. On March 20, 2014, the trial court sentenced defendant to total prison term of 15 years, comprised to the upper term of five years, doubled as a second strike, plus five years due to the prior serious felony. The court imposed mandatory fines and fees, and granted defendant 254 days of custody credit, which included 221 actual days and 33 days of conduct credit. Defendant filed a timely notice of appeal from the judgment. Evidence Defendant entered the New Liquor Market in Long Beach on August 11, 2013, with a large, school-type backpack which looked empty. While in the store defendant picked up some pastries and a beer and walked toward the front door of the store. The cashier, Josefina Gonzalez, testified that she had seen defendant take items from the store without paying for them on prior occasions. She had told defendant to stop taking things and had warned him the next time she would call the police. Gonzalez alerted another