Filed 9/30/21 P. v. McGowan CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. MICHELLE MCGOWAN, Defendant and Appellant. G0 5 9555
(Super. Ct. No. 19NF0976 )

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Scott A.
Steiner , Judge. Affirmed.

Kendal l Dawson Wasley , under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *2 A jury found Michelle McGowan guilty of second degree robbery, and she was sentenced to the midterm of three years

. McGowan appealed, and her appointed counsel filed a brief under the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 ( Wende ) and Anders v. California (1967) 386 U.S. 738

. Appellant did not file a supplemental brief. Because our review of the r ecord discloses no arguable issues, we affirm the judgment

.

I
FACT UAL BACKGROUND On April 5, 2019, R.C. , who w as 68 years old at the time , was walking
around Anaheim when two men exited a vehicle and then assaulted and robbed him . The

two men were ac companied by a woman, but R.C. testified she sa t in the front passenger seat, said nothing, and did not exit the vehicle or move into the driver ’ s seat . When he
was later shown a six

- pack of photographs containing appellant ’ s picture, R.C. did not identify her as the female companion. H owever, R.C. was not wearing his prescription glasses at the time of the incident

.

An eyewitness, I.M., testified she observed the entire incident . I.M. saw a green Kia Soul car approach the victim

. Looking thro ugh the Kia ’ s front windshield,
I.M. saw a female driver, who m she identified as appellant. Two men exi ted the vehicle, and proce eded to assault and rob R.C

. When I.M. yelled she had called the police , the men stopped and jumped back into the car

.

I.M . testified ap pellant laughed when the men got out of the car and watched the assault while manipulating the screen of a black tablet or large phone

. As appellant drove away , she made eye contact with I.M

. I.M. spoke with a 911 dispatcher
about the incid ent and provided a description of the vehicle and license plate number. She later selected appellant ’ s photograph from a six

- pack lineup.3 Using the license plate number I.M. provided, t he po lice learned the Kia

was a rental, and that it had been parked at appellant ’ s apartment on April 6 and April 10,
2019. After a ppellant was seen drivin g the Kia on April 16, 2019 , officers conducted a traffic stop of the vehicle

. A black tablet was found inside ap pellant ’ s purse

. In a search of appellant ’ s apartment on the same day, none of the items taken from R.C. during the robbery were located.

II
DISCUSSION Following Wende guidelines, we have reviewed counsel ’ s brief and the appellate record. To assist the court in its review, counsel identified two issues for our consideration: Whether the evidence was sufficient to prove appellant acted as an aider and abettor to the robbery, and whether the trial court prejudicially erred in instructing
the jury with CALCRIM No. 315.
A. Substan tial Evidence Supported the R obbery C onviction

Someone aids and abets a robbery if she knows of the perpetrator ’ s unlawful purpose and specifically intends to and does in fact aid, facilitate, promote,
encourage or instigate the perpetrator ’ s commission of that crime. (See People v. Cooper (1991) 53 Cal.3d 1158 , 1164 ; People v. Beeman (1984) 35 Cal.3d 547 , 561 .) In determining whether the evidence is sufficient to support a conviction, “ the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a re asonable doubt. ” ( Jackson v. Virginia ( 1979 ) 443 U.S. 3 07, 319 .) Under this standard, “ a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreo ver, unless the testimony is physically4

impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.] ” ( People v. Young (2005) 34 Cal.4th 1149, 1181.)

Here, I.M. testified appellant was driving the Kia when the two men exited the vehicle to rob the victim. I.M. observed appellant laughing at the beginning of the robbery incident and watching the robbery while manipulating a tablet. I.M. also observed appellant drive the two men away from the scene . A reasonable jury could rely
on I.M. ’ s testimony to conclude appellant had knowledge that the two men rob bed the victim and that appellant specifically intended and did encourage or facilitate the robbery by transporting the robbers to and from the crim e scene. Thus, substantial evidence supported the robbery conviction.
B. The Trial Court Did Not Prejudicial Err in Giving CALCRIM No. 315

CALCRIM No. 315, as gi ven at trial, informs the jury it can consider a witness ’ s certainty when evaluating his or her testimony. In People v. Lemcke (2021)
11 Cal.5th 644 , the California Supreme Court held that instruction does not raise any
federal or state due process problem

. The high court, however, exe rcised its supervisory power to direct the trial courts to e xcise the reference to certainty when giving
CALCRIM No. 315 in future cases, until an advisory committee evaluates the instruction

. ( Id. at p p

. 647

- 648. ) Here, t he trial court did not commit any reversible error under
Lemcke because the instruction as given did no t implicate any constitutional concerns and the high court ’ s order to excise certainty as a factor was issued after judgment was
entered in this case

.

Our review of the entire record, including the matters identified by counsel , does not show the existence of an arguable issue. ( Wende , supra , 25 Cal.3d at p. 443.) Accordingly , we affirm the judgment.5 II
D IS POSITION The judgment is affirmed.

ZEL ON, J.*

WE CONCUR:

O’LEARY, P. J.

FYBEL, J. *Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.