Filed 11/10/21 P. v. Underwood CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B309928
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA148993)
v.
HASAN TARIQ UNDERWOOD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Raul A. Sahagun, Judge. Affirmed.
Adrian Dresel-Velasquez, under appointment by the Court
of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
**********
FACTUAL AND PROCEDURAL SUMMARY
Appellate counsel appointed to represent defendant and
appellant Hasan Tariq Underwood filed a brief pursuant to
People v. Wende (1979) 25 Cal.3d 436 (Wende) in which no issues
were raised. The brief included a declaration from counsel that
he reviewed the record and sent a letter to defendant explaining
his evaluation of the record. Counsel further declared he advised
defendant of his right, under Wende, to submit a supplemental
brief within 30 days, and forwarded copies of the record to
defendant. Defendant filed a supplemental brief asserting lack of
substantial evidence, his sentence is unfair, and the court acted
improperly in disregarding the prosecution’s request to dismiss
both prior strike convictions. We affirm.
In March 2019, defendant was charged with two counts of
second degree robbery (Pen. Code, § 211). The charges arose from
an incident on September 25, 2018, in which defendant
confronted two teenage girls on the street and threatened to
shoot them if they did not put down their cell phones. After the
girls put their phones on the sidewalk, defendant grabbed both
phones and fled in his car. It was also alleged defendant had
suffered two prior robbery convictions in 2015 (§§ 667,
subds. (a)(1), (b)–(j) & 1170.12).
After several continuances, some of which were caused by
the Covid-19 pandemic, trial by jury began at the end of October
2020. The court granted defendant’s request to bifurcate trial of
the prior conviction allegations and denied the prosecution’s
motion to admit evidence of defendant’s prior robbery convictions
pursuant to Evidence Code section 1101.
The two victims, Alexis C. and Jazlyn D., testified. Their
descriptions of the incident were substantially similar. Alexis
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and Jazlyn said they were walking home from high school
together sometime after the lunch period, probably around
1:00 p.m.
As they passed a small parking lot, they noticed a silver
Nissan parked in the lot. The car stood out because the lot was
usually empty. There was an Uber sticker in the front
windshield. A tall Black male was standing outside the car.
Both girls identified defendant in court as the man they saw that
day. Jazlyn said he had “dreads” and was wearing red shoes.
Alexis described him as about six feet tall with a large tattoo on
his neck.
Shortly after the girls walked past the parking lot, the man
pulled up next to them in the silver car. The windows were all
down and he yelled at them to put their cell phones on the ground
or he would shoot them. Neither girl saw a gun but both were
scared. They placed their cell phones on the ground.
Defendant told the girls to keep walking and repeated his
threat to shoot them if they did not comply. Jazlyn said she
started walking backwards to keep an eye on defendant.
Defendant got out of the car, grabbed the two phones and then
got back in his car. He sped off quickly, tires “screeching.”
Alexis and Jazlyn ran to Jazlyn’s home and called the
police. Officers responded to the home and spoke with Alexis and
Jazlyn separately. Both victims said the suspect had been in a
silver Nissan and that the suspect was a Black male around
six feet tall with black hair. Jazlyn told the officers about the
Uber sticker in the front windshield.
Jazlyn and her boyfriend had an application on their
phones that shared their respective locations. About 30 to
40 minutes after the robbery, her boyfriend’s phone sent a
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notification about the location of Jazlyn’s phone, first at a
Starbucks a few miles away, and then at a gas station. They
called the police and reported that information. They were told
to meet the police at the gas station.
Juliann Bodnar worked at the gas station. She recalled a
Black male coming into the station around 2:00 p.m. and asking
to use the restroom. He had dreadlocks and a large shark tattoo
on his throat. Ms. Bodnar gave that description to the officers
when they arrived at the station a short time later.
Video footage recovered from the gas station security
cameras showed a silver sedan arriving and a Black male going
inside. The sedan had an Uber sticker in the front windshield.
Based on information from the victims and the gas station
footage, the officers identified defendant, who had a distinctive
shark tattoo on his neck, as a possible suspect. A six-pack of
photographs was prepared in which all photographs were
digitally altered to have the same neck tattoo to avoid an
identification based solely on the tattoo. Both victims separately
identified defendant in the six-pack as the person that took their
phones.
Defendant exercised his right not to testify.
The jury found defendant guilty on both counts. Defendant
waived his right to a jury trial on the bifurcated prior conviction
allegations.
At the sentencing hearing and bench trial on the priors on
January 7, 2021, the prosecutor advised the court that while the
People had initially opposed defendant’s motion pursuant to
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, they
were now seeking a dismissal of the prior conviction allegations
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based solely on Special Directive 20-08.1, the new policy directive
issued by the newly sworn district attorney.
The court declined to dismiss both strike priors. The court
granted defendant’s motion in part, striking one prior conviction
for all purposes and exercising its discretion not to impose the
five-year enhancement pursuant to Penal Code section 667,
subdivision (a)(1) as to the remaining strike.
The court found the remaining prior conviction to be true
and imposed a state prison sentence of 10 years. The court
imposed the high term of five years on count 1, doubled due to the
prior strike. The court imposed the same sentence on count 2
and ran the term concurrently. Defendant was awarded 943 days
of presentence custody credits.
DISCUSSION
1. Defendant’s Evidentiary Claims
Defendant’s main claim of error is best characterized as a
substantial evidence challenge.
“In assessing a claim of insufficiency of evidence, the
reviewing court’s task is to review the whole record in the light
most favorable to the judgment to determine whether it discloses
substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.”
(People v. Rodriguez (1999) 20 Cal.4th 1, 11.) In undertaking this
review, our job does not include reweighing conflicts in the
evidence or assessing witness credibility. (People v. Boyer (2006)
38 Cal.4th 412, 480 (Boyer); see also People v. Zaragoza (2016)
1 Cal.5th 21, 44 [it is not the task of a reviewing court to “resolve
credibility issues or evidentiary conflicts”].) Moreover, “unless
the testimony is physically impossible or inherently improbable,
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testimony of a single witness is sufficient to support a conviction.”
(People v. Young (2005) 34 Cal.4th 1149, 1181.)
The victims testified to the descriptions they gave of the
suspect to the officers following the incident, as did the
responding officers. Defendant offers only speculation that the
911 call should have been offered in evidence because it would
have revealed that a different description was initially reported.
Defendant also states only his unsupported belief there
should have been video footage of the incident available because
the robberies occurred near a school and schools generally have a
lot of security cameras. But Detective Hardwick testified there
was no video evidence of the vehicle or suspect at the time the
phones were taken from the two victims.
As for the lack of witnesses to the incident, other than the
two victims, both victims testified there was no one else on the
sidewalk at the time the robberies took place. The girls said they
were walking home at the lunch hour and not the end of the
school day when more students would have been leaving the
school grounds. The law is clear that the “[i]dentification of the
defendant by a single eyewitness may be sufficient to prove the
defendant’s identity as the perpetrator of a crime.” (Boyer, supra,
38 Cal.4th at p. 480.) There is substantial evidence in the record
supporting defendant’s conviction.
To the extent defendant’s supplemental brief can be
construed as an argument that his trial counsel was ineffective
for failing to present additional evidence in his defense, we must
reject the contention. Defendant has not shown “both that trial
counsel failed to act in a manner to be expected of reasonably
competent attorneys acting as diligent advocates, and that it is
reasonably probable a more favorable determination would have
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resulted in the absence of counsel’s failings.” (People v. Cudjo
(1993) 6 Cal.4th 585, 623, citing Strickland v. Washington (1984)
466 U.S. 668, 687–696.)
2. Defendant’s Sentencing Claim
Defendant’s expressed displeasure with his 10-year
sentence can best be characterized as an argument the trial court
erred in refusing to grant his Romero motion in its entirety
despite the prosecutor’s concession to dismissal of both strikes.
We review this contention under the deferential abuse of
discretion standard. (People v. Carmony (2004) 33 Cal.4th 367,
375-376 (Carmony); accord, People v. Taylor (2020) 43
Cal.App.5th 1102, 1113.)
As the Supreme Court explained, “[i]n reviewing for abuse
of discretion, we are guided by two fundamental precepts. First,
‘ “[t]he burden is on the party attacking the sentence to clearly
show that the sentencing decision was irrational or arbitrary.
[Citation.] In the absence of such a showing, the trial court is
presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.” ’ [Citation.]
Second, a ‘ “decision will not be reversed merely because
reasonable people might disagree.” ’ ” (Carmony, supra,
33 Cal.4th at pp. 376–377.) “The Three Strikes law ‘not only
establishes a sentencing norm, it carefully circumscribes the trial
court’s power to depart from this norm . . . . [T]he law creates a
strong presumption that any sentence that conforms to these
sentencing norms is both rational and proper.’ ” (People v. Avila
(2020) 57 Cal.App.5th 1134, 1140.)
Further, in determining whether to strike a prior serious or
violent felony conviction, we “must consider whether, in light of
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the nature and circumstances of [the defendant’s] present
felonies and prior serious and/or violent felony convictions, and
the particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme’s spirit, in whole or
in part, and hence should be treated as though he had not
previously been convicted of one or more serious and/or violent
felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)
Defendant has not shown the court’s sentencing decision
was irrational or arbitrary. The court granted defendant’s
motion in part, striking one prior conviction for all purposes and
exercising its discretion not to impose the five-year enhancement
pursuant to Penal Code section 667, subdivision (a)(1) as to the
remaining strike. The court acknowledged defendant was
relatively young but said defendant had engaged in “extremely
serious conduct,” that he served prison time for robbery,
reoffended a fairly short time following release, and had not
learned from past incarceration. The court concluded defendant
did not fall “outside of the three strikes structure” and therefore
declined to strike the remaining strike.
3. The Request for New Counsel
Defendant makes a generalized, conclusory statement that
he desires new appellate counsel to be appointed. Defendant has
not stated a cognizable claim.
4. Other Issues
In addition to reviewing defendant’s claims of error, we
have examined the entire record of proceedings submitted to this
court, including but not limited to defendant’s motion pursuant to
Pitchess v. Superior Court (1974) 11 Cal.3d 531. We conclude
there are no arguable appellate issues. (People v. Kelly (2006)
40 Cal.4th 106; Wende, supra, 25 Cal.3d 436.)
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DISPOSITION
The judgment of conviction is affirmed.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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