Opinion
NOT TO BE PUBLISHED
Super. Ct. No. NCR69095.
CANTIL-SAKAUYE, J.
Appointed counsel filed an opening brief setting forth the facts of the case and, pursuant to People v. Wende (1979) 25 Cal.3d 436, requested the court to review the record and determine whether there are any arguable issues on appeal. Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the filing of the opening brief. Defendant filed a supplemental brief raising numerous claims of error. For the reasons discussed below, we shall reject defendant’s claims and affirm the judgment.
Viewing the evidence, as we must, in the light most favorable to the trial court’s ruling (People v. Williams (1988) 45 Cal.3d 1268, 1301), the pertinent facts are as follows:
On November 11, 2004, while counting the money played in slot machines on November 10, employees of the Rolling Hills Casino in Tehama County discovered nine $1 bills that were altered to be read as $100 bills by the machines. Due to the money collection and counting process, the employees determined which machines accepted the altered bills and approximately when.
Casino security personnel and the police reviewed the surveillance video cameras and were able to identify those persons playing the slot machines when the altered bills were tendered. Videos identified one man and one woman, both African-American and both obscuring their faces with hats. Therefore, to establish defendant’s identity at trial, the prosecution presented evidence of similar crimes committed by defendant and his family at a different casino. The evidence presented was as follows:
On July 19, 2005, defendant, his wife Marisa Braziel-Stokes, her daughter India Carter, and her daughter’s boyfriend, Tyrone Thomas, left Oakland, California bound for Oregon. Along the way, they stopped at the Win-River Casino in Shasta County at around 4:00 in the morning to play the slot machines. Later, in four of their slot machines, Win-River employees discovered 12 $1 bills, altered to read as $100 bills. Video surveillance showed defendant, Braziel-Stokes, Carter, and Thomas in the casino at the time the altered bills were tendered. Security personnel identified Braziel-Stokes, Carter, and Thomas as the individuals playing those four slot machines when the altered bills were tendered.
Defendant, Braziel-Stokes, Carter, and Thomas were arrested the following day in Medford, Oregon after defendant attempted to exchange torn $100 bills for new, intact bills at a bank in Medford. In the socks and underwear of the detained Braziel-Stokes and Carter, officers found torn $100 and $1 bills. A search of the car in which they were traveling produced a hat, pieces of currency, torn currency, an X-Acto knife, rolls of scotch tape, coupons, receipts, and room keys for various casinos bearing defendant’s or his wife’s name.
After they were arrested, defendant admitted to one of the officers that he was involved in the “piece-note” scam, tearing and taping together the altered bills. The Medford police subsequently contacted the Win-River and Rolling Hills Casinos and defendant was charged in Tehama County with grand theft of personal property (Pen. Code, § 487, subd. (a)), second degree commercial burglary (Pen. Code, § 459), and forgery (Pen. Code, § 470, subd. (d)). The prosecution also alleged a prior strike conviction that was subsequently dismissed when it was established the individual convicted in that matter was not the defendant. After pleading not guilty, a jury convicted defendant on all counts. The court sentenced defendant to the upper term of three years in state prison for second degree commercial burglary, staying imposition of sentence on the remaining convictions pursuant to Penal Code section 654.
In his supplemental brief, defendant claims the trial court erred in allowing the prosecution to rely on evidence that had been “tampered” with and allowing the prosecution to engage in “witness tampering” by offering some witnesses leniency for their testimony. Neither of these objections were raised at trial; hence, they are all forfeited on appeal. (People v. Waidla (2000) 22 Cal.4th 690, 717 [“‘“[q]uestions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal”’”].) These claims would fail even if preserved for appeal.
Defendant contends the trial court erred in allowing the prosecution to rely on “the security list of machines that [defendant] played [, which] was scratched out and another machine number was added at a later date.” Dan Largeant, supervisor from the Surveillance Department at Rolling Hills Casino, explained the handwritten modification was made in order to make the document internally consistent. Such a modification to the document affects only the weight of the evidence, not its admissibility. (Cf. People v. Martinez (2000) 22 Cal.4th 106, 132 [errors in computer printouts may be developed on cross-examination and do not impact a document’s admissibility].) Defendant’s contention is thus without merit.
Apparently, each machine has two names, one for the casino floor and one for the accounting department. As initially drafted, one of the identifiers was incorrect, so Largeant corrected it.
Defendant further claims that the prosecution “tampered” with witnesses by offering them leniency in exchange for their testimony. Offers of leniency or immunity in exchange for truthful testimony, however, are commonplace and are not necessarily coercive. (People v. Badgett (1995) 10 Cal.4th 330, 355.) There is no evidence in the record to suggest the offer of leniency here was anything other than the standard fare. Defendant’s claim fails accordingly.
Defendant argues the trial court erred in admitting evidence of his “other crimes” committed at the Win-River Casino in Shasta County. Apparently, he believes there was insufficient evidence to convict him of those crimes. Nevertheless, defendant was convicted of those crimes and they were admissible here to prove defendant’s intent as well as his identity. (Evid. Code, § 1101, subd. (b).)
The defendant also contends the trial court failed to seat a jury of his peers. Defendant raises two issues in support of his claim: (1) “25 people on jury pool had direct contact or work for casino”; and (2) there were no minorities on the jury. Again, defendant did not raise these objections at trial, thus they are forfeited on appeal. (People v. Ervin (2000) 22 Cal.4th 48, 73 [defendant must object at trial to any irregularity in jury selection process in order to preserve claim for appeal].) In any event, the record on appeal does not include the jury voir dire, making it impossible for this court to review defendant’s claims.
In his supplemental brief, defendant also states: “I was run concurrent to Shasta County and was also given credits I never received.” We can discern from the record that defendant was convicted of second degree burglary for his role in the burglary at the Win-River Casino in Shasta County. He was granted three years of probation and 336 days in jail for that conviction. There is nothing in the record about whether that sentence was to run concurrently with the sentence imposed in this case or how that sentence may have impacted defendant’s prison term for the current conviction.
Additionally, based on the information contained within the probation report, the probation department correctly calculated defendant’s credits at 241 days, 161 actual days and 80 conduct credits. The court awarded 241 days of credits at sentencing, and the abstract of judgment reflects an award of 241 days. On this record we find no error.
Defendant also claims: “[I]’m eligible Cunningham v. California [sic] because I shou[l]d’ve received low or mid term.” In deciding to impose the upper term, the trial court relied on, among other things, defendant’s nine prior convictions. This aggravating factor made defendant eligible for the upper term. (People v. Black (2007) 41 Cal.4th 799, 816.) Because this aggravating factor made defendant eligible for the upper term, the trial court did not violate defendant’s right to a jury trial in imposing the upper term. (Ibid.)
Finally, defendant argues he suffered ineffective assistance of counsel. Defendant states: “[T]rial attorney ask[ed] to be relieved from the case after defense rested. Prior to second Marsden Motion. Stating I would [perjure] myself if I took the stand and also said that we had conflicts. Stating I had no defense.”
After reviewing the record, it is evident that a conflict between trial counsel and defendant arose when defendant insisted on testifying on his own behalf. Counsel explained to the trial court that he could not, consistent with his ethical obligations, participate in defendant’s testimony and asked to be relieved as counsel of record. Upon further questioning from the court, counsel further explained that he understood defendant’s testimony would contradict statements defendant previously made, and the problem could not be cured by appointment of new counsel. The court denied counsel’s request and offered to let defendant testify in the narrative if he so chose.
Counsel is prohibited from knowingly putting forth perjured testimony. (People v. Guzman (1988) 45 Cal.3d 915, 943-944, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) It is thus manifestly true that counsel cannot be ineffective for refusing to participate in defendant’s effort to perjure himself, which counsel here believed to be defendant’s intent. Thus, we find defendant failed to establish he received ineffective assistance of counsel.
After considering the record on appeal, we conclude defendant’s claims lack merit. Having also undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., NICHOLSON, J.