Filed January 31, 2011.

JENKINS, J.

This is an appeal from the judgment after a jury convicted defendant Ramiro G. Quezada (defendant) of two counts of second degree robbery (Pen. Code, § 211) with an enhancement for personally and intentionally discharging a firearm (Pen. Code, § 12022.53, subd. (c)).Defendant's counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106 , raising no issue on appeal and requesting that we conduct an independent review of the entire record. Having done so, we affirm the judgment of the trial court.

On August 28, 2009, between 3:00 p.m. and 3:30 p.m., a man wearing dark sunglasses, a white striped T-shirt, and a white shirt or cloth on his head like a towel, entered the office of an insurance agency in Hayward. The man was armed and wore a little bag or fanny pack on the front of his waist. The office was on the second floor of a small building. The agency's owner, Brenda Occhipinti, and clerk, Maribel Contreras, were in the office at the time.

Occhipinti watched on a video monitor in her office as the man walked quickly into the file room, where he grabbed Contreras, pointed a small handgun at her, and demanded: "Give me the money or I'm gonna kill you." Occhipinti, who by this time had stepped out of her office, told Contreras to give him the money. The man then told Occhipinti he would kill her if she screamed or called the police. Contreras obeyed the man's order and gave him approximately $700 in cash from a box disguised as a book kept in the agency's desk.

At this point, the man removed the white T-shirt or cloth from his head, but kept on his sunglasses, and ordered both Contreras and Occhipinti to lie face down on the floor. The man then fired a gun shot at the floor very close to where the women were laying and left the office, placing the money in his small bag or fanny pack. Occhipinti felt the bullet go through her hair. The robbery lasted about five or ten minutes in total.

After making sure she had not been shot, Occhipinti ran out of the office screaming that she had been robbed and began chasing the man, who had turned left on the street outside the office. Occhipinti lost track of the man, however, and headed back to the office. Upon her return, she spoke with a 911 operator, whom Contreras had called. Occhipinti told the 911 operator the man was wearing blue jeans and a brown T-shirt.Contreras also spoke to the 911 operator, and the taped call was later played for the jury.

The police arrived at the scene while the women were still on the phone with 911. Occhipinti told police the man who robbed them was an Hispanic male wearing blue jeans, a white or gray striped shirt and a white shirt or cloth on his head. Occhipinti, who is from Venezuela and is familiar with different accents because she engages with many Spanish-speaking people at work, believed the man had a Central American accent.

About 10 to 20 minutes later, police returned to the office and asked the women to accompany them to Cannery Park, about two or three blocks away, to attempt to identify a suspect. At the park, the police brought out two men who had been found sitting on a bench in the park, one of whom was defendant. Occhipinti told police that defendant looked "really similar" to the man who robbed them, even though he wore different clothes and no sunglasses. The other man did not resemble the robber.

Contreras told police she was sure defendant was the robber. Contreras later testified that when defendant stepped forward, "I started shaking, I knew right away." She recognized his face, height and weight. He appeared to have the same black tennis shoes. Contreras did not recall what the man had been wearing other than tennis shoes during the robbery, but she knew that defendant was wearing different clothes when she identified him as the robber at the park. Contreras also recognized defendant's voice and accent when police had him say to her in Spanish, "Give me the money or I'm going to kill you." Contreras, who is from Mexico and familiar with Mexican and Central American accents, believed his accent was Salvadorian, although she was not absolutely certain.

Based upon the women's identification of defendant as the man who robbed them at gunpoint earlier in the day, defendant was arrested and taken to jail. A short time later, after returning to the office, Contreras provided a statement to police in which she described the robber as an Hispanic male, about 5'3," skinny, 160 pounds, 35 to 40 years old, and wearing a light short-sleeve shirt and dark pants, possibly brown. The police also took a statement from Occhipinti. She first told the officer neither man that she viewed at the park was the robber, and signed a statement indicating as much. However, almost immediately, Occhipinti, who was in shock and whose second language is English, told the officer the second man "was really, really similar" to the robber. She then signed a second statement consistent with her revised recollection.

About two or three weeks after the robbery, the police arranged for Occhipinti and Contreras to visit the Santa Rita jail to view a lineup of suspects. The women viewed six suspects. Other than defendant, none of these suspects had been at the park on the day of the robbery. Occhipinti placed a question mark above defendant's position (number two) on a document corresponding to the lineup, indicating he "looked familiar" and could have been the robber. She asked police to have the suspects talk in Spanish and put on glasses so she could compare these characteristics to those of the robber, but the officers failed to do so. Nonetheless, as Occhipinti later testified, she marked defendant's image because "I am sure it was him, it was similar." Contreras likewise marked defendant's position (number two) on the document and told police she was sure he was the robber. She thereafter identified defendant as the robber at the preliminary hearing.

At trial, Occhipinti and Contreras both identified defendant in court as the person who robbed their office and threatened to kill them with a handgun. When asked by defense counsel whether she was sure defendant was the robber, Occhipinti replied, "No. Yes, I am," and then added, "I'm more calm and I'm sure that it's him." Occhipinti further maintained that she had consistently told police on the day of the robbery that defendant looked "similar" to the robber.

Contreras acknowledged at trial that her description of the robber given to police on the day of the robbery could have been based on her viewing of defendant in the park, and not just on her memory of the robber. However, she emphatically stated that she recognized the robber's face when she saw him at the park, although she did not pay attention to his clothes. She also acknowledged at trial that, although she told police during the interview that defendant was the "same" man who had come to their office about eight months earlier, he was merely "similar" to the other man and may not have been the same.

Also at trial, Ann Keeler, a criminalist at the Sheriff's Crime Lab, testified that three particles of gunshot residue were found on the shirt defendant was wearing at the time of his arrest.No such residue was found on defendant's hands. However, Keeler acknowledged that the presence of gunshot residue does not mean the person fired a gun; it only means the person came into contact with the residue at some unknown time. A person can wash or wipe his hands to remove the residue.

Keeler further acknowledged that gunshot residue already present in the backseat of a police car could be transferred to a person who later sits in that seat. Keeler did not know whether the arresting officer or his patrol car were tested for gunshot residue. Officer Varela, who transported defendant to the police station for booking, later testified that he had not fired his gun that day, nor had he transported anyone "involved" in a shooting that day. However, Officer Varela had taken Occhipinti, who was present when the robber's gun was fired, to the park to view the suspects in the back seat of the same police car later used to transport defendant to jail.

Defendant thereafter testified in his own defense, insisting this was a case of mistaken identity. Defendant, born in Mexico in 1969, explained that, on the day in question, he left his house about 7:30 a.m. on his bicycle to go to Home Depot in Hayward to find work as a laborer. Defendant, who had slept in his clothes, was wearing the same brown pants he had on when arrested. He did not change his clothes at any point that day.

When defendant was unable to find work, he left Home Depot on his bicycle at about 2:40 p.m. and went to a nearby park to meet his girlfriend, arriving about 3:00 p.m. Defendant remained at the park "some time," but did not see his girlfriend and so eventually left to go to another nearby park, about three minutes away. At the second park, Cannery Park, defendant saw three people — a woman and two men — who he had recently met. About ten minutes later, he left with these three people, whose names he did not know, to return to the first park to again look for his girlfriend. Defendant saw his girlfriend there, but did not speak to her because she was arguing with someone. He then returned to Cannery Park where he talked to his three friends again for about ten minutes before heading to a nearby store to buy a beer. Afterwards, defendant returned to Cannery Park to rejoin his three friends. About fifteen minutes later, as defendant was sitting on a park bench talking to his friends, he was approached by police, handcuffed, taken to the police car for identification by the victims, and ultimately arrested. The officers did not speak to him in Spanish, and he did not understand what they were saying to him.

Defendant was carrying about $100 in cash when arrested, which he had earned for three and a half days of work the previous week. As the police confirmed, defendant did not have a fanny pack or other bag, a gun, sunglasses, blue jeans, striped shirt or white T-shirt when arrested.Defendant denied having ever visited the insurance agency office or having seen the two victims. He did not have a gun nor discharge a gun, and has no idea how gunshot residue ended up on his shirt.

Finally, Kourosh Nikoui, a fingerprinting expert for the defense, testified that defendant's fingerprints were not found among the fingerprints lifted from the office of the insurance agency on August 28, 2009.

On December 10, 2009, the jury found defendant guilty on both robbery counts and found true the firearm use enhancement. On January 7, 2010, defendant was sentenced to 23 years in prison, consisting of a mitigated two-year term on the first robbery count, a subordinate one-year term on the second robbery count, and a 20-year term for the enhancement. This timely appeal followed.

As mentioned above, defendant's appointed counsel has filed an opening brief setting forth the material facts, but raising no legal issue for our consideration. Counsel requests that we independently review the record to decide whether there exists any nonfrivolous issue for appeal. ( People v. Wende, supra,   25 Cal.3d 436 ; People v. Kelly, supra,   40 Cal.4th 106 .) In doing so, counsel attests that defendant was advised of his right to file his own brief with this court. On September 27, 2010, this court received a letter from defendant in which he vehemently professed his innocence and insisted this was a case of mistaken identity.

However, after a careful, independent review of this record, including review of the trial exhibits which we requested from the trial court, we agree with defendant's counsel that there are no reasonably arguable legal or factual issues for our consideration. Defendant, represented by competent counsel, was found guilty by a jury of two counts of second degree robbery, enhanced for the personal and intentional discharge of a firearm. (§ 211, § 12022.53, subd. (c).) The jury's findings were adequately supported by the evidence offered at trial, including the victims' identification of defendant as the robber less than an hour after the crime occurred, their subsequent identifications of him at jail and in trial, their testimony regarding his firing of a gun shot in the office floor next to where they laid, evidence of a bullet hole in the office floor, and the three particles of gunshot residue recovered from the shirt worn by defendant at the time of his arrest.

The trial court thereafter sentenced defendant to a mitigated term of two years for the first robbery count and a subordinate term of one year (one-third the mid-term) for the second robbery count. The trial court also imposed a 20-year consecutive term for the firearm use enhancement for each robbery count, but then stayed the term imposed with respect to count one, resulting in a total sentence of 23 years in state prison.The trial court also imposed a $200 restitution fine (§ 1202.4, subd. (b)), $200 parole violation fine to be suspended unless parole is revoked (§ 1202.45), $250 probation investigation fee (§ 1203.1b), $40 court security fee (§ 1465.8), $60 criminal conviction assessment (Gov. Code, § 70373), and $10 theft fine (§ 1202.5). Finally, the trial court ordered defendant to pay $1,848 in restitution to Occhipinti, an amount stipulated to by defendant, and then reserved further restitution to be determined at a later date.The sentence, fees and fines, which were not challenged by defendant below, were lawful.(§ 211; § 12022.53, subd. (c); § 1203.06, subd. (a)(1)(B); Cal. Rules of Court, rule 4.423, subd. (b)(1); see also People v. Valtakis (2003) 105 Cal.App.4th 1066 , 1072 ["defendants . . . cannot complain for the first time on appeal of restitution fines imposed without findings or evidence of ability to pay"].)

Thus, having ensured defendant received adequate and effective appellate review, we affirm the trial court's judgment. ( People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Kelly, supra, 40 Cal.4th at pp. 112-113.)

The judgment is affirmed.

We concur:

McGuiness, P. J.

Pollak, J.

1. Unless otherwise stated, all statutory citations herein are to the Penal Code.

2. When a customer pays cash for insurance, the money is placed in this box.

3. At trial, Occhipinti testified that, when speaking to the 911 operator, she was in shock and using English, her second language, and that when she said brown shirt she actually meant white shirt.

4. Bernard Cuhna, a civilian manager of property in the crime scene unit, testified regarding the chain of custody of defendant's clothing.

5. None of these items were ever recovered by police.

6. In staying imposition of this sentence, the trial court reasoned that defendant fired only one shot, which went through the hair of Occhipinti.

7. This restitution amount was based upon evidence that the robber took $748 in cash and that the victims subsequently incurred debts of $100 for carpet repair, $800 for a one-day business closure, and $200 for lock repair.

8. With respect to the 20-year sentence for the firearm enhancement, the Penal Code provides that, "[n]otwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years." (§ 12022.53, subd. (c).)

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