Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County No. JCF22389, William D. Lehman, Judge.
HALLER, J.
A jury found Otho Sarmiento Gastelum guilty of petty theft (Pen. Code, § 484, subd. (a)). In a bifurcated proceeding the jury found he had suffered four prior theft-related convictions (§ 666) and two strikes (§ 667, subds. (b)-(i)) and served two prior prison terms (§ 667.5, subd. (b)). The court dismissed one of the strikes, stayed one of the prison priors and sentenced Gastelum to seven years in prison: six years (twice the upper term) for petty theft with a prior and one year for the remaining prison prior. Gastelum appeals. We affirm.
All further statutory references are to the Penal Code.
The court did not have the authority to stay sentence on the prison prior. It was required either to impose and execute a one-year sentence or dismiss the enhancement. (People v. Langston (2004) 33 Cal.4th 1237, 1241; People v. Campbell (1999) 76 Cal.App.4th 305, 311.) The court said it viewed the two prison priors "as a single prior prison term" because "sentence [was] handed down... on the same day." It is therefore clear that had the court been aware of its options, it would have dismissed the prison prior rather than imposing and executing sentence. Thus, the abstract of judgment correctly reflects a term for only one of the prison priors.
BACKGROUND
On September 1, 2008, Wal-Mart loss prevention officer, Fidel Zaragoza, saw Richard Cesena select merchandise, walk to another area of the store and place the merchandise in a shopping cart. Cesena took the cart back to the area where he had started. Gastelum was there with another cart containing merchandise. Both men placed the merchandise in empty Wal-Mart bags. They walked away together, heading toward the exit, with Cesena pushing a cart containing the bagged goods. Gastelum moved ahead of Cesena and spoke with the Wal-Mart greeter as Cesena left the store. Cesena did not pay for the merchandise. Gastelum then followed Cesena outside. Zaragoza and his supervisor detained Gastelum and Cesena. The goods recovered from the cart were worth a total of $276.12. The store's security cameras captured the incident.
Cesena testified for the defense that he had falsely told Gastelum that he intended to pay for the merchandise with food stamps, although he really intended to steal it. Gastelum did not help him bag the merchandise and did not leave the store with him. Cesena was prosecuted, convicted and sentenced to three years in prison for the offense. He was previously convicted of forgery, grand theft, petty theft with a prior, commercial burglary between 1994 and 2008.
In the bifurcated proceeding, the People produced evidence of Gastelum's prior convictions.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. 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. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel lists, as possible, but not arguable, issues: whether the evidence was sufficient to support Gastelum's conviction of petty theft under an aiding and abetting theory; whether the court's instruction with a modified version of CALCRIM No. 220 was sufficient to cure any prejudice that might have arisen after some jurors saw Gastelum outside the courthouse, shackled, getting into the sheriff's van; and whether the court properly exercised its discretion when it declined to dismiss both strikes.
We granted Gastelum permission to file a brief on his own behalf. He has responded with the following contentions. There was no evidence to support his conviction of petty theft with a prior. At the last minute the prosecutor raised the aiding and abetting theory but Gastelum was never charged with aiding and abetting. Although the jury saw Gastelum in handcuffs, defense counsel did not request a mistrial. Counsel was ineffective. Gastelum had been a client of the judge before he was appointed to the bench, but the judge denied Gastelum's recusal request.
As discussed below, the contentions in Gastelum's supplemental brief are without merit.
The Conviction of Petty Theft with a Prior
The evidence set forth above shows that Gastelum put Wal-Mart merchandise in a shopping cart, helped Cesena bag merchandise they had collected, walked toward the exit with Cesena, distracted the Wal-Mart greeter as Cesena left the store with the cart full of merchandise and then left the store himself. This is substantial evidence Gastelum committed petty theft. (People v. Shannon (1998) 66 Cal.App.4th 649, 654; People v. Beeman (1984) 35 Cal.3d 547, 561.) As noted above, he has four prior theft-related convictions.
The Aiding and Abetting Theory
It was evident from the outset of the case that the prosecutor relied on an aiding and abetting theory. Aiding and abetting need not be alleged in the charging document. (§§ 31, 971.)
Mistrial Motion
Defense counsel moved for a mistrial on the grounds that several jurors saw Gastelum as he was being put into the sheriff's van, handcuffed but wearing street clothes. The court denied the motion. Counsel reasonably declined to have the jurors questioned, noting that to do so would emphasize the fact that Gastelum was in custody. Counsel agreed that a modified version of CALCRIM No. 220 would "remedy any potential prejudice that may have resulted from the incident...." The instruction, as given by the court, stated, "The fact that... a criminal charge has been filed against the defendant, or the defendant is in custody, is not evidence that the charge is true. You must not be biased against the defendant just because he is in custody, has been arrested, charged with a crime, or brought to trial." There was no error. (People v. Jacobs (1989) 210 Cal.App.3d 1135, 1142; People v. Cunningham (2001) 25 Cal.4th 926, 988.)
Defense Counsel
A criminal defendant has a constitutional right to effective counsel. (Gideon v. Wainwright (1963) 372 U.S. 335.) The defendant has the burden of proving counsel was ineffective. To do so, the defendant must show counsel failed to act in a manner expected of a reasonably competent attorney and counsel's acts or omissions prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692.)
Gastelum brought at least six Marsden motions in the trial court. (People v. Marsden (1970) 2 Cal.3d 118.) He claimed there was a breakdown in communication in the attorney/client relationship and an ongoing dispute concerning trial preparation, motions, production of witnesses, and evidence. After giving Gastelum full and fair hearings, the court properly denied the motions. The record does not support Gastelum's ineffectiveness claims. (People v. Roberts (1963) 213 Cal.App.2d 387, 394.)
Recusal
At the first hearing after his assignment to this case, the court said it had a vague recollection that it may have represented Gastelum as an attorney with the public defender's office. The court had no recollection of the facts of that case. At the court's request, counsel reviewed all of the records regarding Gastelum's prior convictions alleged in this case. Counsel assured the court that it had not represented Gastelum in any of those cases. There was no error.
Conclusion
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 has disclosed no reasonably arguable appellate issues. Gastelum has been competently represented by counsel on this appeal. Gastelum's request for new appellate counsel is denied.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, Acting P. J., AARON, J.