Filed 3/21/13 P. v. Williams CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL ERNEST WILLIAMS,

Defendant and Appellant. B241954

(Los Angeles County Super. Ct. No. VA119137)

APPEAL from a judgment of the Supe rior Court of Los Angeles County. Michael L. Schuur, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Michael Williams, in pro. per.; Kevin Michele Finkelstein, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

________________ __________________2 An amended information charged Michae l Williams with one count of second degree robbery (Pen. Code, § 211). 1 The information alleged in the commission of the robbery Williams, “with the inte nt to do so, took, damaged an d destroyed property of a value exceeding $65,000,” with in the meaning of section 12022.6, subdivision (a)(1). Evidence presented at trial showed that robbery victim Cesar Ramirez worked for a recycling company and sometimes paid out la rge sums of money in cash for recyclable materials. On multiple occasions, defendant Williams had brought car parts to Ramirez’s employer to be sold. On March 23, 2011, at about 7:30 a.m., Ramirez arrived for work carrying a backpack full of bu ndles of cash totaling approxi mately $120,000. Ramirez had withdrawn the money from the bank the ev ening before because he needed to pay a customer for a large volume of recyclable materials. As Ramirez was unlocking the gate at the recycling company, two men approached. A man later identified as Juan Carlos Garcia demanded Ramirez’s backpack, told Ramirez he had a gun and wo uld shoot, and moved his hand inside his jacket pocket indicating he had a gun. Garcia grabbed the backpack and Ramirez let him

because Ramirez was afraid Garcia w ould hurt him. The two men ran off. Ramirez flagged down a stranger who was dr iving by and asked for his help. The stranger allowed Ramirez to get into his vehi cle and they drove off after Garcia and the

other man. Ramirez saw Garcia and the othe r man run to and climb inside a white sport utility vehicle with paper license plates. Ramirez dialed 911 and provided the location and description of the white vehicle. Eventu ally, Ramirez lost sight of the white vehicle and went back to the recycling comp any to wait for the police to respond. A short time later officers stopped a wh ite sport utility vehicle matching the description Ramirez ha d provided. W illiams was driving and Ga rcia and his companion were passengers. The officers ordered the th ree men to exit the vehicle. An officer

looked inside the vehicle and saw bundles of cash in the center console next to the driver’s seat. Williams, Garcia and the other man were arrested. During a field show-up,

1 Further statutory references are to the Penal Code.3 Ramirez identified Garcia and the other man as the people who ha d run off with his backpack. Ramirez re cognized Williams because of th eir prior business relationship.

Williams testified at trial. He stated he went to the recycling company in the morning on March 23, 2011, b ecause Ramirez was supposed to pay him for recyclable materials he had dropped off previously. While waiting for Ramirez to get there,

Williams realized the food order he had picked up from a fast-food restaurant was

incorrect. Williams decided to re turn to the restaurant to pi ck up the correct order while Garcia (Williams’s ex-brother-in-law) and the other man got out of Williams’s vehicle to smoke a cigarette. As Williams was returning from the restaurant, he saw Garcia and the other man walking down the street. He pick ed them up and drove aw ay quickly when he realized they were being chased by another vehicle. Williams st ated he did not know Garcia had taken Ramirez’s backpack. Nor did he know that Garcia or the other man had placed more than $100,000 in th e center console of the vehicle he was driving. Williams denied being involve d in the robbery. The jury found Williams guilty of robbery and found true the special enhancement allegation under section 12022.6 , subdivision (a)(1). The tr ial court sentenced Williams to four years in state prison: the middle te rm of three years for the robbery plus a consecutive one-year term for the enhancement. Williams appealed. We ap pointed counsel to represent him on appeal. After examination of the record, counsel filed an ope ning brief raising no i ssues and asking this

court to review the record independently pursuant to People v. Wende (1979) 25 Cal.3d 436. On December 10, 2012, we advised Williams that he personally had 30 days to submit any contentions or issues he wished us to consider. We also directed his appointed counsel to send the record and opening brief to Williams immediately. On December 24, 2012, Williams filed a letter brief.

Williams raises three issu es. First, he contends his case should have been

dismissed because Juan Carlos Garcia was “made unavailable by the state by deportation.” Williams asserts Garcia was a “material witness” w ho “would have been able to give testimony that woul d have le[d] to [his] innocence.”4 An information filed in this case on Se ptember 15, 2011 charge d both Juan Carlos Garcia and Williams with the second degree ro bbery of Cesar Ramirez. During a pretrial proceeding on October 13, 2011, the trial court indicated on the record that Garcia was “being returned to his coun try of origin.” At a hearing on October 27, 2011, the prosecutor stated for the record that there was an outstanding warrant for Garcia’s arrest. The trial court questioned why federal au thorities took custody of Garcia without allowing the state to prosec ute him for this robbery.

Williams cannot demonstrate error. The r ecord does not indicate he informed the trial court or the prosecution that he wanted to call Garcia as a witness. He did not argue below that the charges against him should be dismissed base d on Garcia’s deportation. Moreover, there is nothing in the record indicating Garcia would have provided testimony favorable to Williams. ( People v. Valencia (1990) 218 Cal.App.3d 808, 812- 813, 825.)

The second issue Williams raises is “ille gal search and seizure.” He argues the arresting officer should have obtained a s earch warrant before searching the vehicle Williams was driving, and recovering the bund les of cash. Williams forfeited this issue by failing to move to suppress th e evidence below. (§ 1538.5, subd. (m).) He did not object to the admission of evidence on this ground at trial. Notwithstanding the forfeiture, Williams’s claim of illegal search and seizure fails based on the record.

Williams was arrested as a su spect in a robbery. At th e time of the search, it was “reasonable to believe the vehicle contain[ed ] evidence of the offe nse of arrest.” ( Arizona v. Gant (2009) 556 U.S. 332, 351.) In fa ct, the vehicle Williams was driving away from the scene of the cr ime did contain the bundles of cash which were inside Ramirez’s backpack at the time he was robbed.

The third issue Williams rais es is ineffective assistance of counsel. “‘To establish ineffective assistance of counsel, a [defenda nt] must demonstrate that (1) counsel’s representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) co unsel’s deficient representation subjected the [defendant] to prejudice, i.e., there is a reasonable probability th at, but for counsel’s5 failings, the result would have been more favo rable to the [defendant]. [Citations.] “A reasonable probability is a probability suffi cient to undermine confidence in the outcome.” [Citation.]’ [Citation.]” ( In re Jones (1996) 13 Cal.4th 552, 561.) The record does not support any of the arguments Williams makes in support of

his ineffective assistance of co unsel claim. Williams argues his counsel “failed to have [unspecified] evidentiary hearings,” and “failed to consult with [him] regarding [unspecified] important facts” and “theorie s.” He also argues his counsel failed to conduct “research” regarding, including but not limited to, phone calls between him and Ramirez, and Ramirez’s statement he had the bundles of cash at th e time of the robbery because he owed money to so meone other than Williams. He further argues his counsel “[d]id not try and recover a ny other video tape that wo uld have been exculpatory evidence on [his] behalf” and “entered the wrong invoices into evidence.” Williams does not explain what additional evidence his c ounsel could have intr oduced which would have been helpful to his case.

Williams asserts his counsel fa iled to pursue a plea deal for him, refused to let his grandfather testify at trial, 2 convinced him not to retain pr ivate counsel for sentencing by representing she had “worked out a deal” with the judge, and refused to allow him to address the trial court at the sentencing hearing. There is nothing in the record supporting any of these assertions. We have found no thing in the record es tablishing deficient performance by Williams’s counsel. As part of his ineffective assistance of counsel claim, Williams argues, “The composition of the jury was wrong for [his] case and [counsel] did nothing to rectify it.”

2 Williams’s grandfather was a participant in the business transacti ons with Ramirez.6 He references the fact his counsel made a Wheeler 3 motion, but he does not challenge the court’s ruling on that motion. 4 What he complains about is that his counsel did not ask the trial court to have more potential jurors brought into the courtr oom when the pool was

exhausted. The record indicates both sides ac cepted the jury panel when there were three potential jurors left in the pool. The defens e had exercised eight of its ten peremptory challenges at that point. (Code Civ. Proc., § 231, subd. (a).) In selecting alternate jurors, the defense exercised another peremptory cha llenge and the remaining two jurors in the pool became the alternates. Th e record does not support Williams’s assertion his counsel rendered ineffective assistance during jury selection.

We have examined the entir e record, including the repo rter’s transcript from the hearing on Williams’s Wheeler motion, and are satisfied that Williams’s appellate counsel has fully complied with his responsib ilities and that no arguable issues exist. ( People v. Kelly (2006) 40 Cal.4th 106, 109-110; People v. Wende

, supra , 25 Cal.3d at p. 441.)

3 People v. Wheeler (1978) 22 Cal.3d 258.

4 We have reviewed the reporter’s transc ript from the May 2, 2012 hearing on Williams’s Wheeler motion. We are satisfied the tria l court did not err in denying the motion. In support of the mo tion, defense counsel asserted the prosecution had used two of the three peremptory cha llenges it had exercised to ex cuse the only two AfricanAmericans in the jury pool. Defense counsel noted for th e record that Williams is African-American. Finding Williams had made a prima facie case of group bias, the trial court asked the prosecutor to state reasons for excusing these potential jurors. ( People v. Cruz (2008) 44 Cal.4th 636, 655 [“‘“‘once the de fendant has made out a prima facie case, the “burden shifts to the State to explain ad equately the racial exclusion” by offering permissible race-neutral justifications for the strikes’”’”].) The prosecutor gave reasons which were not based on race (one of these tw o potential jurors was previously on a hung jury; the other had a child who was a social worker, which the prosecutor described as a “fairly liberal cause[],” and another child wh om the potential juror believed worked as a deputy in the District Atto rney’s Office, but based on her description of where her daughter worked the prosecutor was not convin ced, commenting, “She could be a public defender.”7 DISPOSITION The judgment is affirmed.

NOT TO BE PUBLISHED.

CHANEY, J.

We concur:

MALLANO, P. J.

ROTHSCHILD, J.