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The People v. Timothy Lee Smith

October 13, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TIMOTHY LEE SMITH, JR., DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F01948)

The opinion of the court was delivered by: Hoch , J.

P. v. Smith

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. Having reviewed the record as required by Wende, we affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

On the afternoon of March 22, 2010, Alfred Tabarez was riding a light rail train to meet his mother at the Social Security office on Folsom Boulevard in Sacramento. Defendant Timothy Lee Smith, Jr., was also on the train, sitting in a nearby seat facing Tabarez. Defendant followed Tabarez as he got off the train and began walking toward the Social Security office. Tabarez was listening to music on his cell phone. Defendant was walking behind Tabarez and talking on his cell phone.

As Tabarez reached the office parking lot, defendant asked to use his phone, claiming his battery had lost its charge. Tabarez allowed defendant to use his phone. Defendant completed his call and, as he handed the phone back, asked to use it again. Tabarez agreed. Defendant said he needed to walk up the street in order to get better directions. Tabarez walked up the street with defendant.

They turned down a side street, after which defendant pulled a gun out from behind his back and pointed it towards Tabarez's head and neck region. Tabarez described the gun as looking like a black metal revolver with a silencer. Defendant told Tabarez, "You . . . can fight for your phone or you can leave with your life." He also told Tabarez he worked at a gun range and knew how to shoot guns. Tabarez told defendant he could have the phone and quickly walked away.

Tabarez ran from the parking lot to the Social Security office, where his mother called 911. Tabarez described defendant, his clothing, and his backpack to the dispatcher.

Police officers located defendant about a mile and a half from the Social Security office, in an open field near Oki Park. As one of the officers approached, defendant dropped something and began to walk away. When subsequently questioned, defendant showed the officer where he had dropped the item -- which was Tabarez's cell phone. Defendant had changed shirts but the shirt described by Tabarez was in his backpack. Tabarez was brought to the area where he positively identified both defendant and his stolen cell phone. Officers searched but were unable to locate a gun.

Defendant testified at trial and admitted he committed the robbery. He claimed, however, that although he had told Tabarez he had a gun, he did not really have one.

The jury found defendant guilty of robbery and assault with a firearm and found defendant personally used a firearm in committing each offense. (Pen. Code, ยงยง 211, 245, subd. (a)(2), 12022.53, subds. (a) & (b).) The trial court sentenced him to the lower term of two years for robbery, plus 10 years for the attendant firearm enhancement. Sentence for the assault and its attendant firearm enhancement was stayed pursuant to Penal Code section 654. The trial court also imposed a $200 restitution fine and suspended a parole revocation fine in the same ...


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