Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCE286384, Roderick Shelton, Judge.
O'ROURKE, J.
A jury convicted Ziyad Abid Asliwa of two felony counts of first degree burglary (Pen. Code, § 459) and receiving stolen property (§ 496, subd. (a)). It found true allegations that the charged burglary was within the inhabited portion of a building (§ 460) and that a person other than an accomplice was present in the residence at the time the alleged offense occurred (§ 667.5, subdivision (c)(21)). The court suspended imposition of sentence and granted Asliwa formal probation. In part, it ordered as a condition of probation that Asliwa serve 365 days of custody with 38 days of credit. Having reviewed the record, we find no arguable error that would result in a disposition more favorable to Asliwa. Accordingly, we affirm the judgment.
All statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
At about 5:00 p.m. on November 24, 2008, Natasha Ann Stidman arrived at the El Cajon home she shared with her then fiancée Kristian Allos. When she first entered the house, Stidman noticed an interior light on and called out, "Hello." She then heard someone shut the door that connected the house to the garage. She ran to the garage and opened the door to find a middle-eastern man, Asliwa, in her garage holding one of her flat-screen television sets. Stidman said, "Hi, how are you, " and Asliwa looked shocked, dropped the television, and fled to his vehicle across the street. Stidman saw that the car he entered was a distinctive silver Honda Civic with dark tinted windows, a rear spoiler and special rims. She called 911. Later, Stidman and Allos noticed they were missing a computer game console, four computer games and some game components, some pieces of jewelry, alcohol, a cross, and a device for viewing cable television on a computer. The couple's television sets were stacked up outside the house as if ready to be loaded into a car.
Allos recognized Stidman's description of the burglar's vehicle as a car belonging to one of the construction workers employed by their general contractor, Dorid Tovia. Asliwa's older brother Dany Asliwa was Tovia's employee and part of a crew of five or six mostly middle-eastern men that worked on Stidman and Allos's house. Asliwa worked for Tovia for five or six hours one day at the house when Dany could not work. Asliwa had previously been to the house to bring food to Dany. According to Tovia, the Honda Civic belonged to Asliwa's younger brother Sarmad who also had worked for Tovia when Dany was not available. After Allos called Tovia and told him they had been robbed and thought it was one of their workers, Tovia went to Asliwa's house, took down the license place number of the Honda Civic, and gave it and the brothers' address to police.
We will refer to Asliwa's brothers Dany and Sarmad by their first names to avoid confusion.
San Diego County Deputy Sheriff Albert Carrillo was assigned to identify the suspect, and used the license number to run an inquiry with several databases. He first located Sarmad's name and then ran an inquiry with the sheriff department's jail management system, which revealed the names of some of Sarmad's relatives including Asliwa. Deputy Carrillo then created line-ups with the photographs he had found, including Sarmad and Asliwa. When Stidman viewed the lineup with Asliwa's photograph, she circled that photograph and identified him as the burglar.
Deputy Carrillo testified that after he located the name of Asliwa's younger brother Sarmad Asliwa, he "did an inquiry with our jail management system and located some of his relatives with similar names. [¶] [Prosecutor:] And was one of the individuals Ziyad Asliwa? [¶] [Deputy Carrillo:] Yes. [¶] [Prosecutor:] And what was his relationship to Sarmad, from your database? [¶] [Deputy Carrillo:] It was — that was his brother."
About two weeks later, a sheriff's department detective went to Asliwa's apartment and recovered Allos's computer game console and four games. Sarmad first claimed he had gotten the console at a swap meet, and then said a friend had given it to him. The detective located the silver Honda Civic in the apartment complex's parking lot.
At trial, Asliwa's sister testified that on November 24, 2008, Asliwa and a friend of his had given her and her husband a ride to the airport at noon to catch her flight, but that her flight did not leave until later that evening. According to her, Asliwa and his friend stayed with them until 5:00 p.m., right before their flight departed. Asliwa's sister-in-law testified that on that day, Asliwa returned from the airport sometime between 4:00 p.m. and 5:00 p.m., ate dinner, and left for an English class at around 6:00 p.m. The principal and a teacher at Asliwa's adult English language course testified Asliwa arrived at 6:30 p.m. and was present until class ended at 9:30 p.m.
Asliwa's first cousin Andy Murad testified that his mother taught Asliwa to drive an automatic car, and that Sarmad's car had a manual transmission. Murad had never seen Asliwa or anyone else drive Sarmad's car; Murad's experience was that the brothers had some sibling rivalry and Sarmad would not let anybody, especially Asliwa, get into his car. Asliwa's car was a "silverish" Infinity with an automatic transmission. Asliwa's relatives testified he could not drive a car with an automatic transmission.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth evidence in the superior court. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. Under Anders, counsel identifies possible, but not arguable, appellate issues: (1) whether there is sufficient evidence to find true the section 667.5 subdivision (c)(21) enhancement; (2) whether Asliwa's trial counsel provided constitutionally ineffective assistance by failing to object to a police officer's testimony that his name was in the jail management system when he had no criminal record; and (3) whether the court impermissibly reduced the prosecution's burden of proof by instructing the jury, pursuant to CALCRIM No. 376, that it may find him guilty of burglary based on only slight corroborating evidence of guilt.
This court invited Asliwa to file a brief on his own behalf, but he did not respond.
I. Sufficiency of the Evidence
Substantial evidence supports the jury's finding on the section 667.5, subdivision (c)(21) enhancement that a person other than an accomplice — here Stidman — was present in the residence "during the commission of the burglary...." (§ 667.5, subd. (c)(21).) The evidence was that after Stidman entered her home and called out, she heard the door to her attached garage close, allowing the jury to reasonably infer she and Asliwa were inside the residence at the same moment. There is no merit to the argument that for purposes of the enhancement, the burglary was complete at the point of Asliwa's entry into the residence. (See CALCRIM No. 3261 [burglary is complete upon the perpetrator reaching a place of temporary safety]; People v. Walls (1978) 85 Cal.App.3d 447, 451, 453-454 [though a burglary offense is complete upon entry with felonious intent, "this does not dictate the conclusion that the crime is complete for all purposes precluding consideration of the acts and conduct of the intruder after entry as part of the commission of the crime, or that the crime ends upon entry and cannot continue while he is unlawfully on the premises.... [¶]... In the case of a burglary, if the purpose of the [enhancement] is to be advanced, it matters not whether injury was inflicted upon the occupant at the time the burglar gained entry or after the entry was effected"]; cf. People v. Jones (2001) 25 Cal.4th 98, 109-110 ["In the case of a weapons-use enhancement [set forth in section 12022.3, subd. (a)], such use may be deemed to occur 'in the commission of' the offense if it occurred before, during, or after the technical completion of the felonious sex act"].)
II. Claim of Ineffective Assistance of Counsel
Nor was counsel constitutionally ineffective for failing to object to Deputy Carrillo's testimony that he located Asliwa's name from an inquiry using Sarmad's name in the jail management system. To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel's performance fell below a standard of reasonable competence, and that there is a reasonable probability the result would have been more favorable to the defense in the absence of counsel's deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. (People v. Mincey (1992) 2 Cal.4th 408, 449.) We perceive no possible arguable ground for an evidentiary objection to what is an accurate statement based on the deputy's personal actions and knowledge. Asliwa cannot demonstrate by the preponderance of evidence that his counsel provided ineffective assistance.
III. Instruction with CALCRIM No. 376
The trial court instructed the jury pursuant to CALCRIM No. 376 as follows: "If you conclude that the defendant knew he possessed property, and you conclude that the property had in fact been recently stolen, you may not convict the defendant of Penal Code section 459/460 based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed Penal Code section 459/460, which is residential burglary. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant committed the crime, along with any relevant circumstances proving his guilt of Penal Code section[s] 459 [and] 460. [¶] Remember, you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt."
CALCRIM No. 376 did not reduce the prosecution's burden of proof below that of proof beyond a reasonable doubt. The instruction makes it clear that the "slight" supporting evidence is not to be considered in isolation, but together with all of the other evidence for purposes of determining whether there is proof beyond a reasonable doubt that the defendant committed robbery. (See, e.g., People v. Solorzano (2007) 153 Cal.App.4th 1026, 1035-1036.) Second, the instruction expressly requires the jury to be "convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt." (CALCRIM No. 376.) Thus, CALCRIM No. 376 did nothing to diminish the prosecution's burden of proof. (See, e.g., People v. Letner (2010) 50 Cal.4th 99, 189 [predecessor to CALCRIM No. 376, CALJIC No. 2.15, contains no "suggestion... that the jury need not find that all of the elements of robbery (or theft) had been proved beyond a reasonable doubt"]; People v. Gamache (2010) 48 Cal.4th 347, 375-376.)
A review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by Asliwa and his appellate counsel, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Asliwa on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P., J.NARES, J.