Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA065601, Elden S. Fox, Judge.
James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
CROSKEY, J.
Leo Duran Fitch appeals from the judgment entered following a jury trial which resulted in his conviction of four counts of first degree, residential burglary (Pen. Code, § 459), and one count of the possession of burglar’s tools (§ 466). The trial court sentenced Fitch to four years in prison. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
1. Facts.
Twenty-year-old John Romero had known Ivett Ayestas for several years. They had met in a first communion class when they were both approximately 13 years old. Romero had met Fitch through Ayestas. Fitch was Ayestas’s boyfriend.
Romero was given immunity from prosecution in exchange for his testimony.
On September 23, 2007, Ayestas, Fitch and Goodman drove in Ayestas’s Jeep Cherokee to a swap meet where they each bought a black T-shirt, gloves and a bandana. Ayestas then drove to Beverly Hills. She “wanted to burglarize some houses so [she, Fitch and Goodman] could get some money and find an apartment” to rent. Fitch and Ayestas were looking for houses that were dark, had no cars in the driveway, no dogs and no signs indicating the house had an alarm.
At approximately 9:00 that evening, Farhad Rabbany was driving down Wetherly Street in Beverly Hills when he noticed two young men and a young woman standing in front of the Lavian family’s residence. The three individuals, who appeared to be in their late teens, “didn’t look like they were from the neighborhood.” When Rabbany drove past the house again approximately 10 minutes later, the three young people were still standing there. Rabbany parked his car and waited a few moments until the three teenagers, one of whom he identified as Fitch, got into an older model, dark colored, Jeep Cherokee and drove off.
According to Romero, on September 23, 2007, he, Fitch and Ayestas broke into a house in Beverly Hills. They entered by breaking a rear window. After the three had been in the house for between 15 and 30 minutes, they saw car lights pull into the driveway. Romero, Fitch and Ayestas then left the house through the same rear window through which they had entered, ran to the Jeep Cherokee, which Ayestas had parked in the back alley, and took off. Fitch had been the only one who had found anything of value to take that evening. He had taken a man’s gold watch.
On September 25, 2007, Athena Bazar and her husband lived in a house on Maple Drive in Beverly Hills. Upon returning home from work at approximately 5:00 p.m., Bazar discovered the house had been burglarized. The burglars had entered the house by pulling the screen away and breaking a rear bedroom window. Bazar noted that a tin box where she keeps important papers had been opened and the papers had been strewn across the floor. Next to the box was a knife with a black handle and the tip “detached.” A “WII playstation,” a computer, an “I-pod, a “DVD” player and a tapestry from Greece were missing. In addition, the burglars had ransacked the closet. They had taken all of Bazar’s jewelry, some checks, $2,000 in cash, including a bag containing silver coins and some Carribean currency, and a Gameboy. In total, the burglars took approximately $50,000 worth of items from the Bazars’ home.
On October 1, 2007, John Ye, his wife and two young sons lived on South Arden Boulevard in the City of Los Angeles. At approximately 7:00 that evening, Ye’s wife telephoned him and told him that she believed someone had broken into their house. Ye drove home and, while his wife and children remained in their car, Ye went up to the house to investigate. He found the front door ajar and, when he walked inside, saw that the “house was in [a] shambles.” Clothing and other items had been pulled from drawers and was strewn about. Ye immediately left the house and telephoned the police. When Ye later inspected the residence, he realized that all of his sons’ Nintendo games, his wife’s jewelry, and a number of his wife’s designer handbags had been taken. Ye estimated that the burglars took between $250,000 and $300,000 worth of personal property. Ye discovered that the screen to one of the upstairs, rear bedroom windows had been pulled away and that the window had been opened. The awning, which shaded a downstairs window, was ripped as though someone had stepped on it.
Beverly Hills Police Officer Richard Ceja was on patrol in a marked car on the afternoon of October 2, 2007. The officer was at the “top of the alley at Gregory looking down between the Maple/Palm 300 block” when he saw a maroon Jeep Cherokee blocking the alley. As he approached the vehicle, Ceja saw that the tags on the license plate had expired. He then saw a young woman come out of the rear gate leading to the back yard of a home at 325 South Palm. When the woman saw the officer, she hastily headed for the Jeep, opened the driver’s side door and appeared to place something inside the car. The woman, who Ceja identified as Ayestas, then walked toward the officer, waved and said, “ ‘I’m moving, officer. Everything’s fine. I’m moving.’ ” When Ceja asked Ayestas where she was comimg from, she pointed toward the house at 325 South Palm and told the officer that she was a “domestic” there, had been locked out and was going home. When Ceja questioned Ayestas about the expired registration, she returned to the car, pulled out a current sticker, placed it on the license plate then, appearing very nervous, attempted to get into the car to leave. Ceja called Ayestas back and asked her if she had any identification. Ayestas retrieved an employment stub from the City of Los Angeles. Since she had just told Ceja that she worked in Beverly Hills, the officer became suspicious. When Ayestas could not provide the name of her employer, he asked her if he could search the Jeep. Ayestas acquiesced.
On the front floorboard of the Jeep Cherokee, Ceja found a folding knife with the tip broken off, a pair of gloves and a flashlight. On the back seat was another glove and a second flashlight. On the passenger side of the vehicle, the officer found a large bag of coins. There was money in the glove compartment. On the center console, the officer found a purse. Inside the purse was a wallet with Ayestas’s California Identifcation Card. Next to the card was Fitch’s California driver’s license. As Ceja was looking at the identification cards, he was told that a young man was hesitatingly walking down the alley. After recognizing the man as Fitch, Ceja patted him down. From one of his “cargo” pockets, Ceja removed a screwdriver and a pair of black gloves. The tip of the screwdriver was slightly bent. When Ceja then asked Fitch where he was coming from, Fitch told the officer that Ayestas had dropped him off approximately three blocks away and that he had been walking from block to block looking for property to buy. After telling the officer that neither he nor Ayestas lived in the area, Fitch stated that the bag of coins found in the Jeep belonged to him. He indicated that he had been saving them for a long time. Fitch told the officer that the knife and flashlights found in the car also belonged to him.
Ceja took Fitch and Ayestas into custody for suspected burglary and possession of burglar’s tools. He then sent other officers to check the rear of the house at 325 South Palm to determine whether a “crime... had occurred, or if there was anybody home to corroborate [Ayestas’s] story.” As there was no one at home, Ceja left on the front door his business card and a request for the occupants to call him.
On the morning of October 4, 2007, Romero telephoned Ayestas to see if she and Fitch had found an apartment yet. Ayestas asked Romero for a ride so that she could cash a check and Romero obliged. He drove to Ayestas’s house, picked her and Fitch up and drove them to a pawnshop where Ayestas cashed her check. When, after cashing her check, Ayestas indicated she wanted to go for a ride, Romero drove up into the Hollywood hills. Ayestas and Fitch gave Romero directions as they drove. Ayestas finally told Romero to slow down and pull up in front of a particular house. Fitch went up and knocked on the door. When no one answered, Ayestas told Romero to pull up and park several houses away. Fitch, Romero and Ayestas then walked to the back of the house, climbed up onto a deck and entered the house by further opening a window which had been left slightly ajar. Each of the three went into different rooms looking for valuables. Romero took jewelry which had been hanging from a rack in the bathroom and placed it in a bag. After approximately 30 minutes to an hour, the three left the house, got into Romero’s car and drove back to Ayestas’s house.
Meagan Phelps and her husband lived in the house on Verbena Drive in the Hollywood hills. On October 4, 2007, Phelps left for work at approximately 9:00 a.m. and her husband left the house sometime after that. Phelps returned to the house at approximately 2:30 p.m. because her husband had telephoned her and told her that their house had been burglarized. Police officers arrived and entered the house. When Phelps was later allowed to enter the residence, she saw that it had been “trashed.” Drawers had been turned upside down, there were footprints on the white sofa and things were generally in disarray. Among the items taken were all of Phelps’s jewelry, a mask, a playstation, a large beach bag and a yellow “Forever 21” purse.
Romero drove Ayestas and Fitch back to Ayestas’s apartment. When they arrived, they found police officers executing a search warrant there. When they saw Romero, Ayestas and Fitch, the officers told them to stop what they were doing, put their hands where the officers could see them and walk slowly toward the officers. The officers handcuffed Romero, Fitch and Ayestas, placed them in separate rooms and questioned them. Ayestas would not answer the police officer’s questions without first consulting with a lawyer. Romero chose to waive his Miranda rights and to speak with the officers. He stated that he had decided to tell the truth about the burglaries he had participated in.
Miranda v. Arizona (1966) 384 U.S. 436.
During the search of the apartment, officers found in Ayestas’s bedroom Fitch’s driver’s license and numerous items which had been taken during various burglaries. A search of Romero’s car also revealed items taken during various burglaries, including, among other items, a “Forever 21” yellow purse, a “large amount of jewelry,” a brown beach bag, a mask and a playstation. In the passenger compartment of the car was a wallet with Fitch’s Social Security card and other identifying documents inside. Officers also searched the Jeep Cherokee. Inside was a “big bag of currency” which included rolls of coins with the name “Bazar” on them.
2. Procedural history.
Following a preliminary hearing, an information was filed on November 29, 2007 charging Fitch with four counts of first degree, residential burglary (§ 459) and one count of possession of burglar’s tools (§ 466). As to one of the burglaries, it was further alleged Fitch committed the crime while released from custody on his own recognizance (§ 12022.1).
On April 21, 2008, Fitch made a Marsden motion. He indicated that every time he spoke with his counsel, they argued about how to proceed with his case. He stated that he did not “feel that [she was] defending [him] the way that [he felt] that [he] need[ed] to be” defended and that they just did not “get along.” Counsel indicated that, from the beginning, Fitch had been trying to protect Ms. Ayestas. He became upset when counsel told him that she did not believe that was in his best interest and she had advised him “against that.” Counsel indicated that the People had made an offer of four years in prison and that she had convinced the prosecutor to keep that offer open even if Fitch were to go to trial. Counsel did not believe that her relationship with Fitch had been irreparably harmed or that she could not properly represent him. Fitch admitted that, up until that point, he did not believe that counsel had not done “what [was] in [his] best interests in term[s] of trying to get the best outcome for [him].” Fitch indicated that he just did not like the way counsel spoke to him. The trial court denied the motion, indicating that it could not “eliminate counsel because [Fitch did] not like her tone of voice.”
People v. Marsden (1970) 2 Cal.3d 118.
Jury trial commenced on May 1, 2008. After the prosecution presented its case, counsel for Fitch made a motion for acquittal as to the burglaries alleged in counts one, two, three and six (§ 1118.1). Counsel argued the evidence was insufficient to sustain a conviction as to any of those counts. The trial court denied the motion in its entirety.
Fitch and Ayestas were tried together.
After Ayestas’s counsel presented evidence in her defense and the prosecutor put on rebuttal testimony, Fitch addressed the court and stated: “Your Honor? Your Honor, I would like to take the stand.” The trial court recognized Fitch, told him that his request would be discussed, then released the jury for the afternoon. Outside the presence of the jury, Fitch’s counsel indicated that he had advised Fitch it would not be in his best interest to testify. Counsel stated: “I’ve given him my advice, Your Honor, and I have told him that he should not; that it’s not in his interest; that it actually will end up hurting him and Ivett, Ms. Ayestas, if he takes the stand and makes any statements that can be impeached or [are] not accurate or otherwise. And I really don’t think it’s in his interest. I don’t know how else to tell him.” The trial court responded, “What we’re going to do is we’re go[i]ng to resume at 10:30 [tomorrow morning]. Mr. Fitch, you can communicate with counsel. Over the evening recess, you can make your decision. [¶] I will advise you at that point depending on what your decision is as to what your rights are, which certainly includes the fact of testifying[.] But I also need to tell you what the consequences might be in terms of that. And the only thing I can tell you is that’s why you have counsel, so I think you need to consult with your attorney to make sure that whatever decision you make is [the] one that’s going to be in your best interest. [¶] Understood?” Fitch indicated he understood.
The following morning Fitch’s counsel indicated that Fitch had changed his mind and no longer wished to testify. As all of the parties had rested, counsel and the trial court reviewed the jury instructions. Counsel for Ayestas requested that an instruction on receiving stolen property be given. The trial court declined, indicating that since receiving stolen property is not a lesser included offense of burglary and the crime had not been charged by the prosecution no such instruction would be given.
The jury began its deliberations at 3:40 p.m. on Friday, May 9, 2008. On the afternoon of Monday, May 12, 2008, the jury found Fitch guilty of four counts of first degree, residential burglary and one count of possession of burglar’s tools. After the verdicts were read, the prosecutor indicated that the People would be willing to dismiss the special allegation that Fitch committed one of the burglaries while out of custody on bail or his own recognizance.
At proceedings held on September 16, 2008, the trial court noted that the People had agreed to a sentence of four years in prison. Accordingly, the trial court imposed the mid-term of four years in prison for Fitch’s conviction of burglary as alleged in count six. For the remaining three burglary convictions, the trial court imposed concurrent terms of four years in prison. As to the misdemeanor, possession of burglar’s tools, the trial court imposed a term of 180 days in county jail, then gave Fitch credit for 180 days served. The trial court imposed a $400 restitution fine (§ 1202.4, subd. (b)), and a suspended $400 parole revocation restitution fine (§ 1202.45). Fitch was awarded presentence custody credit for 352 days actually served and 176 days of good time/work time, for a total of 528 days. Finally, the trial court reserved the “issue of restitution.”
Fitch timely filed a notice of appeal on September 16, 2008.
This court appointed counsel to represent Fitch on December 22, 2008.
CONTENTIONS
After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed May 22, 2009, the clerk of this court advised Fitch to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., KITCHING, J.