Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, No. GA077854, Candace Beason, Judge.
Sarah A. Stockwell, under appointment by the Court of Appeal; Cuong Huynh, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
PERREN, J.
Cuong Minh Huynh appeals the judgment following his conviction for second degree commercial burglary (Pen. Code, § 459), and petty theft with priors (§ 666). The trial court found allegations to be true that Huynh had suffered a prior serious or violent felony conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served a prior prison term (§ 667.5, subd. (b)). Huynh was sentenced to four years in state prison. We appointed counsel to represent him on appeal. After counsel’s examination of the record, she filed an opening brief raising no issues. (People v. Wende (1979) 25 Cal.3d 436, 441.)
All statutory references are to the Penal Code unless otherwise stated.
On November 22, 2010, we advised Huynh that he had 30 days within which to personally submit any contentions or issues that he wished to raise on appeal. We received a response from him contending that he received ineffective assistance of counsel at trial because his attorney failed to subpoena security videos from Wal-Mart and erroneously advised him that he would not be sentenced to more than 32 months in prison if he went to trial and was found guilty.
Pursuant to People v. Kelly (2006) 40 Cal.4th 106, 123-124, we present a factual and procedural summary of the case and a brief discussion of Huynh’s contentions.
FACTS
Efrain Sarabia was employed by Wal-Mart as an undercover loss prevention security officer. On the evening of September 9, 2009, he saw Huynh in the men’s apparel section looking around for security cameras. Sarabia saw Huynh take a pair of socks, proceed towards the garden department, look around for cameras once again, lift up his shirt, and conceal the socks in the back of his waistband. Sarabia followed Huynh as he proceeded to walk towards the front of the store.
Sarabia and his partner waited for Huynh outside the store. Huynh passed by the registers and metal detectors, and walked outside the store without paying for the socks. When Huynh was two or three steps outside the store, Sarabia approached and identified himself as Wal-Mart security. Huynh attempted to flee, but Sarabia and his partner restrained and handcuffed him. Huynh was then taken to the loss prevention office.
Huynh gave permission for Sarabia to retrieve the socks. Sarabia noticed something else stuffed behind his waistband and asked Huynh if he had taken anything else. Huynh said yes. With Huynh’s permission, Sarabia recovered two flashlights, some allergy medicine, and toothpaste.
A Los Angeles County sheriff’s deputy responded to a petty theft call from Wal-Mart. Huynh claimed his car had broken down, he needed the items, and did not have any money. The value of the merchandise in Huynh’s possession was $55.90.
At trial, Huynh testified that his car had broken down, so he asked a friend to give him a ride to Wal-Mart. When he entered the store, he had an envelope in his possession with $400. After entering the store, he grabbed a flashlight, a toothbrush, and toothpaste. He claimed the allergy medicine in his possession was his. He realized before checking out that he had lost his cash and thought he might have accidentally dropped it in the car. The car could not be located.
Huynh testified that he was inside the store when Sarabia stopped him, and that Sarabia and his partner grabbed his shirt, banged his head against the wall, and falsely claimed that he wanted to run out of the store. Huynh denied hiding socks in the waistband of his pants, but admitted the shoplifted items were in his pockets.
DISCUSSION
A conviction based on a claim of ineffective assistance of counsel requires reversal only if the defendant establishes that (1) counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) there is a reasonable probability he would have obtained a more favorable result absent counsel's shortcomings. (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) Huynh has not met his burden. In light of the eyewitness testimony from Sarabia and his admission that the stolen items were in his pockets, he cannot show prejudice from counsel’s failure to obtain the security videos, assuming they existed. Moreover, there is nothing in the record to support his contention that his attorney told him he would be sentenced to a maximum of 32 months if he went to trial and was found guilty.
We have examined the entire record and are satisfied that appellant’s appointed counsel has fully complied with her responsibilities and that no arguable issues exist. (People v. Kelly, supra, 40 Cal.4th at p. 126; People v. Wende, supra, 25 Cal.3d at p. 441.)
The judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.