Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. Nos. NA071483; NA071807, Arthur Jean, Jr., Judge.
Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
WILLHITE, J.
Deshawn Terrel Eldridge appeals from the judgment entered following a jury trial in which he was convicted of first degree burglary (Pen. Code, § 459) and grand theft (Pen. Code, § 487) and his admission that he suffered one prior conviction of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, §§ 1170.12, subds. (a) - (d) and 667, subds. (b) - (i)), and one prior conviction of a serious felony within the meaning of Penal Code section 667, subdivision (a)(1) and that he served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). He was sentenced to prison for a total of 14 years and four months, consisting of the middle term of four years for the burglary conviction, doubled by reason of the Three Strikes law, plus one third the middle term, eight months, doubled to one year four months for the grand theft conviction, plus five years for the prior serious felony enhancement. The prior prison term enhancements were stricken for purposes of sentencing
In his notice of appeal, appellant states that on the day of trial his requests for a continuance, new counsel and a change of venue were denied.
FACTUAL AND PROCEDURAL SUMMARY
On January 17, 2007, before the jury was called to the courtroom, appellant requested a continuance. Defense counsel explained that he was prepared for the case and was certain appellant had been advised that trial was set for this date, but that appellant was insisting the matter be continued. The court denied the motion for a continuance as untimely.
Immediately thereafter, appellant made a Marsden motion because he and his counsel were “not seeing eye to eye right now” and proceedings were conducted in camera. Appellant’s motion was denied.
People v. Marsden (1970) 2 Cal.3d 118.
Following jury selection and just prior to calling the prosecution’s first witness, appellant stated he was having “a conflict of interest” with his counsel and that appellant had witnesses he wanted to call. He claimed his attorney was not acting in his best interest. Appellant repeated these accusations numerous times and claimed he was being railroaded. After appellant refused to stop talking and stated he could no longer sit next to his attorney, the court had appellant escorted from the courtroom.
Defense counsel explained he had visited appellant on several occasions, each time he had been in court and had appearances, and appellant never indicated there were witnesses who would corroborate his defense. Counsel indicated appellant was “banking on” the hope that the victim in count 1 would not show up. Counsel asserted with regard to count 2, there were no witnesses other than the victim. Counsel stated he had given appellant every opportunity to help counsel in the defense.
The court then stated it was prepared to find appellant would not participate in the trial without disrupting the proceedings. The court noted appellant “burst out” in front of the jury about a conflict of interest, would not let the court discuss the matter with defense counsel and kept repeating the assertions. Appellant was becoming belligerent and “perhaps even dangerous to the bailiffs.” The court then made the finding that appellant had voluntarily absented himself from the trial in that he would not cooperate, was not courteous and was disruptive. The court advised the jury that appellant had voluntarily decided to absent himself from the trial, which he had a right to do, and the jury was to draw no inference from this.
Thereafter, during a recess and outside the presence of the jury, appellant was brought into the courtroom and asked if he wanted to be present for the trial. Appellant stated he wanted another attorney and did not want to be in court. The court advised the jury that appellant remained voluntarily absent.
The next day, appellant appeared in court. When asked if he wanted to be present for trial, appellant stated he wanted a change of venue. He stated he had spoken to a “paid lawyer” who said he would represent appellant as soon as possible. Appellant’s motion for a change of venue was denied. Defense counsel stated he attempted to speak to appellant in his cell the previous evening but appellant said he was claustrophobic and could not meet with him. The court then found that appellant had no intention of cooperating with the trial process or of being quiet while present, and had appellant removed from the court.
Appellant was present in court during closing argument after agreeing to remain courteous to the bailiffs.
The evidence at trial relative to count 1 established that on August 24, 2006, Aubrey Smith lived on East 69th Way in North Long Beach with his caretaker Francis Jackson. Mr. Smith had contact with appellant approximately three times during the summer of 2006 when appellant visited Mr. Smith’s caretaker’s daughter. One Sunday afternoon, appellant came into Mr. Smith’s bedroom and asked for change for a ten-dollar bill. Mr. Smith was in bed and took change for a ten-dollar bill from his drawer and handed it to appellant. Appellant left without giving Mr. Smith the ten-dollar bill. Approximately one hour later, Mr. Smith told his caretaker’s daughter that he had given appellant change for a ten-dollar bill and appellant never gave him the bill. She brought appellant back into the bedroom and appellant denied he took the money and said that it had been “his” nephew. Mr. Smith, however, was sure it was appellant.
A few days later on August 24, 2006, Mr. Smith was taking medication at two o’clock in the morning when he heard a noise that sounded like someone was removing the screen to his bedroom window. Mr. Smith saw appellant raise the blinds and crawl through the window. Mr. Smith yelled at appellant to “get out” and called for his caretaker. By the time his caretaker’s daughter appeared in the bedroom, appellant was gone. Mr. Smith called the police the next morning and when the police arrived, the window screen was still on the ground. Mr. Smith identified appellant in a photographic lineup and appellant’s fingerprints matched prints lifted from Mr. Smith’s window.
As to count 2, the evidence established that on September 8, 2006 at approximately 3:00 p.m., Brian McKinley was shopping at a market on Long Beach Boulevard in Long Beach when appellant grabbed Mr. McKinley’s wallet and ran out of the store. On September 11, 2006, appellant was arrested for failing to pay for a cab ride. When he was searched, Mr. McKinley’s wallet was found on him. The wallet was subsequently returned to Mr. McKinley but a social security card, driver’s license and a $25 gift card were missing.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441. On September 18, appellant’s request to relieve appointed counsel was denied.
On September 24, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. On October 22, 2007, he filed a letter stating he believed paperwork was missing from the record.
We have examined the entire record and are satisfied that no arguable issues exist. The trial court was well within its discretion to order appellant removed from court. (See Illinois v. Allen (1970) 397 U.S. 337, 343.) Further, it did not abuse its discretion in denying appellant’s request for a continuance (see People v. Jenkins (2000) 22 Cal.4th 900, 1038), nor did it abuse its discretion in refusing to discharge appointed counsel and substitute another attorney. (See People v. Hart (1999) 20 Cal.4th 546, 618.) Appellant has not demonstrated he was entitled to a change of venue (Pen. Code, § 1033; People v. Howard (1992) 1 Cal.4th 1132, 1166-1167), nor has he established that documents are missing from the appellate record. Appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112.)
DISPOSITION
The judgment is affirmed.
We concur: EPSTEIN, P. J., MANELLA, J.