Opinion
B231423
12-21-2011
THE PEOPLE, Plaintiff and Respondent, v. RICHARD BALL, Defendant and Appellant.
Allan E. Spears, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SA075523)
APPEAL from a judgment of the Superior Court of Los Angeles County. H. Chester Horn, Jr., Judge. Affirmed.
Allan E. Spears, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Appellant appeals from the sentence imposed after a jury found him guilty of second degree burglary. We affirm the judgment and remand the matter to the trial court for correction of the abstract of judgment as set forth below.
FACTS AND PROCEDURAL HISTORY
On September 24, 2010, appellant and a companion were observed by a witness peering into vehicles parked at an apartment complex. The witness made eye contact with appellant. The witness lost sight of appellant and his companion for a moment, but when he next looked he saw the men inside an older model Honda vehicle owned by the victim, another tenant of the complex. The men had the Honda's doors open, and they were rummaging through compartments inside the car. A few minutes later, the witness observed the men standing at another parked vehicle, looking into its windows. The witness made eye contact with the men then watched as they left the parking structure on foot.
As soon as the men left the structure, the witness notified the police and gave them a description of the two men. The responding officers cruised the neighborhood, searching for the men. About 15 minutes later, they came upon two men (appellant and his companion) who fit the witness's description. The men were at an apartment complex about one-and-a-half blocks away from the witness's building. Appellant had his hands inside a gate trying to open it with a set of keys, and the companion was at the sidewalk keeping a lookout. The officers ordered the men to put their hands up, turn around and walk backwards. Before appellant complied with the order, he tossed the keys into a bush. A search of the surrounding area uncovered a set of skeleton keys, two of which were for an older model Honda vehicle that had been "shaved" to facilitate opening cars with similar locks.
The witness was brought to the location about 45 minutes after he first saw two men at the parking structure, and appellant was taken into custody after the witness identified appellant as one of the men he saw.
When the victim examined his car, he discovered his fishing tackle box and binoculars were missing. The items were never recovered.
Appellant was charged with second degree burglary of a vehicle and the information further alleged that appellant had suffered two prior "Strike" convictions within the meaning of Penal Code sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i), and six additional prior felony convictions within the meaning of section 667.5, subdivision (b). Appellant pleaded not guilty to the charged offense and denied the special allegations.
All further statutory references are to the Penal Code except as indicated otherwise.
Prior to trial, appellant made a motion under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), to replace the public defender on the ground that counsel purportedly was trying to force appellant to accept a plea bargain. The court denied the Marsden motion, stating, "I don't think that [appellant's] really indicating dissatisfaction with [defense counsel]."
The matter proceeded to a bifurcated trial. At trial, appellant did not present a defense but the court allowed him to remove his shirt and show the jury that his arms were both completely covered to his wrists with tattoos. The jury found appellant guilty as charged. Appellant then waived a trial on the special allegations and admitted each of the alleged prior felonies.
A sentencing hearing took place on March 3, 2011. The trial court denied appellant probation and, in addition to imposing the usual fines, sentenced him to a total term of six years in state prison, consisting of the middle term of two years, doubled pursuant to section 1170.12, subdivisions (a) through (d), and two consecutive one-year terms pursuant to section 667.5, subdivision (b). The court struck one of the Strike priors and all but the two of the section 667.5, subdivision (b) priors. The court gave appellant credit for 155 days of actual custody and 72 days of good time/work time, for a total credit of 227 days.
Appellant timely appealed his sentence, and we appointed counsel to represent him on this appeal.
DISCUSSION
After examination of the entire record, counsel filed an opening brief raising no issues and requested that this court conduct an independent review of the record. In a September 21, 2011 declaration accompanying the opening brief, counsel attests that he wrote appellant at his most current address explaining counsel's evaluation of the record on appeal and informing appellant of his right to file a supplemental brief.
On September 26, 2011, we advised appellant he had 30 days within which to personally submit any contentions or issues that he wished us to consider. Appellant submitted a supplemental brief on October 20, 2011.
Appellant raises several issues in his supplemental brief, including: (1) ineffective assistance of appellate counsel who allegedly failed to raise issues appellant wished to raise or to provide appellant with a copy of the transcripts; (2) error by the court in denying his Marsden motion because he had a "major conflict" with the public defender; (3) ineffective assistance of trial counsel, who purportedly denied appellant access to transcripts, police reports, witness statements and other documents that contained "false" evidence; and (4) alleged failure by trial defense counsel to (a) call an expert to examine the "shaved" keys, (b) impeach the arresting officer's testimony regarding the keys, (c) address an uncharged receiving stolen property arrest, (d) retain an expert to challenge the eyewitness's identification of appellant, (e) subpoena a witness who was willing to testify he committed the crime alone after appellant had left the scene, and (f) challenge several allegedly biased jurors.
We have examined the entire record and appellant's supplemental letter. We are satisfied that appellant's attorney has fully complied with his responsibilities and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259; People v. Wende (1979) 25 Cal.3d 436, 441; see also People v. Kelly (2006) 40 Cal.4th 106, 123-124.) We note that appellate counsel has declared he furnished a copy of the transcript to appellant with the opening brief. We also note that the issues appellant has raised in his supplemental brief either are not supported by the facts or law or are not cognizable on appeal.
There is no showing the court's denial of the Marsden motion was an abuse of discretion as the record demonstrates no irreconcilable conflict between appellant and his trial counsel. (People v. Welch (1999) 20 Cal.4th 701, 728.) Appellant's complaints regarding trial counsel appear to be no more than a disagreement over trial tactics, which alone does not amount to an irreconcilable conflict. (Ibid. ["A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense"]; People v. Hamilton (1989) 48 Cal.3d 1142, 1162 ["An accused who chooses professional representation, rather than self-representation, has no right to participate as cocounsel"].) A claim that counsel was ineffective requires a showing that (1) counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing Strickland v. Washington (1984) 466 U.S. 668, 687, 694, & In re Wilson (1992) 3 Cal.4th 945, 950.) Appellant has not established either of these prerequisites. To the extent a claim of ineffective counsel relies on matters outside the record, it is not properly raised by an appeal. (People v. Carter (2003) 30 Cal.4th 1166, 1211.)
The record indicates defense trial counsel actively and competently represented appellant at trial. He objected to evidence, vigorously cross-examined the prosecution's witnesses, questioned the absence of fingerprint evidence tying appellant to the charged offense or any evidence tying appellant to the allegedly stolen items, questioned the prosecution's failure to test or fingerprint the shaved keys and drew attention to the eyewitness's failure to mention appellant's prominent tattoos.
As to appellant's claim his appellate counsel rendered ineffective assistance, nothing raised in the supplemental brief establishes that appellate counsel has failed to raise any meritorious issues. Because none of the issues in appellant's supplemental brief have merit, appellant's contention that appellate counsel rendered ineffective assistance by failing to raise such issues also lacks merit.
However, it appears that the clerk erred in calculating appellant's actual days of custody in that he should have been credited with 161 days of actual custody, not 155 days, and 80 days of good time/work time credit, not 72 days. Counsel for appellant states that appellant attempted to correct the error in the trial court. On our own motion we have inquired of the superior court clerk whether the superior court has entered an order correcting the abstract of judgment and were informed no such correction has been made. The abstract of judgment must be corrected accordingly. (See People v. Fares (1993) 16 Cal.App.4th 954, 958-960.)
DISPOSITION
The judgment is affirmed, and the trial court is directed to correct the abstract of judgment to credit appellant with 161 days of actual custody and 80 days of good time/work time credit, a total of 241 days, and to forward a copy of the corrected abstract to the Department of Corrections and Rehabilitation.
FLIER, J. We concur:
RUBIN, Acting P. J.
GRIMES, J.