IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
January 11, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
KENTON BOYD WITHERS, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10F4849)
The opinion of the court was delivered by: Nicholson , Acting P. J.
P. v. Withers
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 People v. 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, 123-124.)
On July 3, 2010, defendant Kenton Boyd Withers walked up to Jana Clover while she was shopping at Winco. He smiled at her and then took her purse from her shopping cart. Clover tried to grab the purse back but defendant would not let go. He turned and ran off towards the front of the store. Clover tried to run after him but she was 64 years old, had some injuries and was unable to keep up. Clover called out for help, yelling, "Give me back my purse. Stop him, get my purse. He took my purse."
Brenda Heffley, another customer, tried to stop defendant but he pushed her into an aisle and kept running. Heffley's son, Zebulon Taylor, who heard Clover's cries for help, ran after defendant and tackled him. Another customer, Joshua Tadlock, caught up and tried to pry the purse out of defendant's hands but defendant kept a firm grip on the purse. Clover also caught up and unsuccessfully tried to pry her purse from defendant's grip. Taylor applied increasing pressure to defendant's neck and Tadlock pressed his forearm into defendant's face, and the men were eventually able to pry the purse loose.
Clover had just cashed her SSI check and had approximately $1,000 to $1,100 in her purse. Her purse was broken during the theft.
Clover, Heffley, Taylor and Tadlock all testified at trial and the store surveillance tapes were shown to the jury. Defendant testified on his own behalf. He claimed he had been threatened by three men he had been staying with rent free for a month and a half, that he would have to steal a purse or he would be "going to the hospital" or would "get lost" in Redding. He claimed the men had been waiting outside the store, and that was why he told Clover, "Do not run after me" when he took her purse. He did not tell any of this to the police officers on the day of the crime. Instead, he lied and told them Clover was his mother and had asked him to take her purse and put it in her car.
The trial court denied defendant's motion for an acquittal on the robbery count, but did instruct the jury on the lesser included offenses of grand theft and petty theft. The trial court also instructed the jury on the affirmative defense of duress.
The jury found defendant guilty of robbery and the trial court sentenced defendant to the middle term of three years in state prison. The trial court ordered defendant to pay various fines and fees, including a $600 restitution fine and $25 in victim restitution to compensate Clover for her damaged purse. Defendant was awarded 289 actual days and 43 conduct days, for a total of 332 days of presentence custody credit.
Counsel 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, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
The judgment is affirmed.
We concur: ROBIE , J. BUTZ , J.
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