People v. Mumphrey CA1/3

Filed 3/1/16 P. v. Mumphrey CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A145417 v. MICHAEL MUMPHREY, (Alameda County Super. Ct. No. C159117) Defendant and Appellant.

Defendant Michael Mumphrey appeals an order revoking his probation and executing a previously imposed 16-year prison sentence. His court-appointed counsel has filed a brief seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel has represented that defendant has been advised of his right to submit supplemental argument on his own behalf. He has not done so. We conclude there are no issues requiring further review and affirm. Factual and Procedural History On July 30, 2008, defendant pled no contest to one felony count of second degree robbery and admitted three prior convictions. Defendant was advised that his exposure under the plea was 16 years in prison. In exchange for his plea, defendant was promised he would be placed on probation for a term of five years. On January 20, 2009, the trial court sentenced defendant to a total of 16 years in state prison, comprising the upper term of five years for the robbery conviction, doubled to 10 years because of a prior strike, plus five years for a prior serious felony and one

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year for a prior prison term. Consistent with the plea agreement, execution of that sentence was stayed and defendant was placed on probation for five years.1 On August 2, 2011, the probation officer filed a petition to revoke probation, alleging that defendant had been arrested for a robbery in San Francisco. Defendant remained in custody in San Francisco on the robbery charges until his transfer to Alameda County in February 2014. On February 27, 2014, the prosecution filed a petition to revoke probation based on the robbery committed in San Francisco on June 7, 2011. On January 15, 2015, defendant’s counsel filed a document entitled “Memo Regarding Motion to Revoke Probation,” with exhibits. Counsel reported that the jury had acquitted defendant of all charges arising out of the June 2011 robbery but conceded that defendant’s involvement in the June 2011 crime “probably does constitute a violation of probation.” He argued that defendant had “found himself a bed in Delancey Street” and asked that the court send defendant to Delancey Street rather than to prison. At the evidentiary hearing on the petition to revoke, the victim testified that he was walking in his neighborhood at about 6:30 p.m. on June 7, 2011, when he encountered three men. One of the men blocked his path and demanded his wallet. The man lifted his shirt and showed the victim a gun. He handed over everything he had, including his phone and wallet. After they left, the victim went with a neighbor to call the police. He tracked the location of his phone online and informed the police of its location. Shortly thereafter, officers detained the three men. At the scene, the victim identified defendant as the man with the gun. The victim testified that at the time of trial he could not identify the man with the gun and admitted on cross-examination that he had identified a different man as the man with the gun at the preliminary hearing in the San Francisco case. A police officer testified that the arresting officers found the victim’s phone in defendant’s pocket and a BB gun was found near where police detained defendant. Defense counsel challenged the sufficiency of the evidence in support of the