People v. Mack CA3

Filed 5/27/21 P. v. Mack CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Nevada) ----

THE PEOPLE, C091646

Plaintiff and Respondent, (Super. Ct. No. F19000255)

v.

BRIAN JAVON MACK,

Defendant and Appellant.

Appointed counsel for defendant Brian Javon Mack filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After examining the record, we have discovered several errors related to the fees, fines, and assessments imposed by the trial court. We shall modify the judgment to add certain

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mandatory fees and order the abstract of judgment be amended and corrected as described further below. We otherwise affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND In November 2018, defendant and three cohorts entered a T-Mobile phone store in Grass Valley shortly before closing and stole nearly $9,000 worth of cell phones. They were apprehended a short time later after an eyewitness followed them and called police. A September 2019 information charged defendant with two counts of second degree robbery of the two store employees. (Pen. Code, § 211—count one (of M.S.) and count two (of C.J.).)1 It was alleged that defendant had a prior strike (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), a prior serious felony conviction (§ 667, subd. (a)), and committed the offenses while on felony probation (§ 1203, subd. (k)). Defendant pleaded not guilty and denied the allegations. In October 2019, defendant moved to set aside the information under section 995, arguing insufficient evidence of the force or fear element for robbery was presented during the preliminary hearing. The People opposed and the court denied the motion. First Jury Trial In November 2019, the matter was tried to a jury. C.J. and M.S., as well as several responding officers and the eyewitness, testified. Defendant did not present any witnesses. The jury deadlocked during deliberations and the court declared a mistrial. Second Jury Trial Defendant was retried before a new jury in January 2020; the allegation regarding his prior conviction was bifurcated. The court denied the prosecutor’s motion to utilize M.S.’s testimony from the first trial based on witness unavailability.