People v. Franklin CA2/8

Filed 11/10/15 P. v. Franklin CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B262393

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA062066) v.

DAMON E. FRANKLIN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Kathleen Blanchard, Judge. Affirmed, as modified.

Katja Grosch, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

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Defendant Damon E. Franklin was charged by information with one count of second degree robbery (Pen. Code, § 211), with prior strike, serious violent felony, and prison term allegations (§§ 1170, subd. (h)(3), 667.5, subd. (b), 1170.12, 667, subd. (a)(1)). Defendant was convicted by jury of robbery, and admitted his prior strike conviction, serious felony conviction, and four prison terms. The trial court denied defendant’s Romero1 motion to dismiss his strike conviction. Defendant was sentenced to the midterm of three years for the robbery, which was doubled because of his strike prior, as well as a consecutive five years for his serious felony prior conviction. The trial court dismissed the four prison term priors in the interests of justice. Defendant filed a timely notice of appeal. We appointed appellate counsel to represent defendant. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) in which no issues were raised. Defendant filed a supplemental brief with this court arguing: (1) the trial court erred in denying his Romero motion because his strike conviction was old; (2) there was insufficient evidence for his robbery conviction because he “didn’t take anything out of that store by force” and his conduct supported a conviction for theft instead of robbery; and (3) that he received ineffective assistance of counsel because his trial counsel did not make a closing argument and did not call defendant to testify. Finding no arguable appellate issues, we affirm defendant’s judgment of conviction. However, we have identified a clerical error in the abstract of judgment requiring correction. FACTS The following evidence was adduced at trial: Scotty Southwell worked as a loss prevention officer at a Home Depot store in Palmdale. On February 7, 2014, Mr. Southwell saw defendant and an associate in the tool department of the store. They were acting suspiciously, pacing back and forth, and looking nervous. Mr. Southwell was on the sales floor, wearing plain clothing. Mr. Southwell saw defendant’s associate