Opinion
F075604
07-02-2018
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO AGUILAR GUZMAN, JR., Defendant and Appellant.
Tyrone A. Sandoval, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and F. Matt Chen, Deputy Attorney General, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCF344782)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge. Tyrone A. Sandoval, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, and F. Matt Chen, Deputy Attorney General, for Plaintiff and Respondent.
Before Poochigian, Acting P.J., Detjen, J. and Franson, J.
-ooOoo-
A jury convicted appellant Francisco Aguilar Guzman, Jr., of grand theft (Pen. Code, § 487, subd. (a)/count 1). In a separate proceeding, the court found true a prior prison term enhancement (§ 667.5, subd. (b)), an on-bail enhancement (§ 12022.1), and allegations that Guzman had a prior conviction within the meaning of the "Three Strikes" law (§ 667, subds. (b)-(i)).
All statutory references are to the Penal Code.
On October 3, 2017, Guzman's appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, asking this court to conduct an independent review of the record.
On March 9, 2018, this court sent the parties a letter allowing them to file a letter brief addressing whether the court erred by: (1) staying a prior prison term enhancement; and (2) not ordering full restitution to the victim.
Following an independent review of the record and having considered the parties' briefs, we conclude the court erred when it stayed the prior prison term enhancement and modify the judgment by striking that enhancement. We also conclude the court may have erred in calculating the amount of victim restitution and we will remand the matter to the trial court for further proceeding on this issue. In all other respects, we affirm the judgment as modified.
FACTUAL AND PROCEDURAL HISTORY
On February 14, 2017, the Tulare County District Attorney filed a first amended information charging Guzman with grand theft (count 1), second degree burglary (§§ 459/460, subd. (b)/count 2), a prior prison term enhancement, an on-bail enhancement, and allegations that he had a prior conviction within the meaning of the Three Strikes law.
On March 21, 2017, the court denied Guzman's Marsden motion and the jury trial in this matter began. The prosecution's evidence established that on October 28, 2016, at around 9:00 p.m., Filiberto Jauregui was working as an asset protection manager at a Target store in Visalia (Visalia Target) when he was notified that a nonpublic fire exit door alarm had gone off. Jauregui went to the camera room and reviewed surveillance video that showed Guzman putting a vacuum cleaner into a cart that already contained two other vacuum cleaners. The video also showed Guzman taking the cart through a fire exit that was for employees only, down a hallway, and out of the store. Jauregui identified Guzman in court as the man he saw in the surveillance video and someone he had seen in the store several times on prior occasions.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Jauregui testified that the total value of the vacuum cleaners was $1,299.97. --------
Visalia Police Detective Jared Hughes contacted Guzman regarding the theft. When Hughes told Guzman he was investigating the theft of vacuum cleaners from the Visalia Target, Guzman stated that he had not gone into that Target store. When the detective showed Guzman still images from the surveillance video, Guzman denied he was the person in the images and he stated that he was going to "beat this" in court. Hughes read the charges to Guzman and Guzman became agitated and asked, "Since when is stealing vacuum cleaners a felony[?]"
The prosecution also presented evidence of three thefts that occurred at a Target store in Tulare that Guzman admitted committing to the officer who arrested him for those thefts. This evidence was admitted for the limited purpose of proving identity, i.e., that Guzman was the person seen in the surveillance video taking the three vacuum cleaners from the Visalia Target.
Guzman presented an alibi defense through his sister and fiancée, who both testified that Guzman was with them in Earlimart until approximately 8:30 p.m. the day the vacuums were stolen from the Visalia Target, and his fiancée's testimony that she stayed with him until approximately 11:30 p.m. that night.
On March 22, 2017, the jury convicted Guzman of grand theft and the prosecutor dismissed the burglary charge because the jury was unable to reach a verdict on that count. Additionally, Guzman waived a jury trial on the enhancements and Three Strikes allegation.
On March 23, 2017, the court found the enhancements and the Three Strikes allegation true.
On April 19, 2017, the court stayed the prior prison term enhancement and sentenced Guzman to a six-year prison term, a doubled middle term of four years and a two-year on-bail enhancement term. Although the three vacuum cleaners Guzman took from the Visalia Target were valued at $1,299.97, the court ordered him to pay only $973.99 in restitution to Target.
On May 5, 2017, Guzman filed a timely appeal.
DISCUSSION
Guzman's appellate counsel has filed a brief that summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende, supra, 25 Cal.3d 436.) However, in a letter filed on January 19, 2018, Guzman contends: (1) the court erred in denying his Marsden motion; (2) there were "Brady [v. Maryland (1963) 373 U.S. 83 (Brady)] violations" because he did not see any of the evidence until the date of trial; (3) the evidence is insufficient to sustain his grand theft conviction; (4) his rap sheet included an attempted murder charge (an offense for which he was never arrested) that had a negative impact on the court; and (5) the court sentenced him to a six-year term because he exercised his right to a jury trial. We reject these contentions.
"People v. Marsden, supra, 2 Cal.3d 118, mandates a court hearing to determine whether a defendant's appointed counsel offers constitutionally inadequate representation when defendant requests substitution of appointed counsel. The legal principles governing a Marsden motion are well settled. ' "When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney's inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations]." [Citations.]' [Citations.] [¶] ... [¶] '[T]he right to the discharge or substitution of court-appointed counsel is not absolute, and is a matter of judicial discretion unless there is a sufficient showing that the defendant's right to the assistance of counsel would be substantially impaired if his request was denied.' " (People v. Lara (2001) 86 Cal.App.4th 139, 150-152.)
Having reviewed the confidential Marsden transcript, we conclude the trial court did not err when it denied Guzman's Marsden motion.
"[Moreover,] [p]ursuant to Brady, supra, 373 U.S. 83, the prosecution must disclose material exculpatory evidence whether the defendant makes a specific request [citation], a general request, or none at all [citation]. The scope of this disclosure obligation extends beyond the contents of the prosecutor's case file and encompasses the duty to ascertain as well as divulge 'any favorable evidence known to the others acting on the government's behalf ....' " (In re Brown (1998) 17 Cal.4th 873, 879.)
Guzman has not asserted a prima facie case of Brady error because he does not contend that the prosecutor withheld evidence from the defense. To the extent he meant to assert defense counsel provided ineffective representation because he allegedly did not show him any evidence until the date of trial, his contention is not cognizable because it relies on facts outside the appellate record. (People v. Neilson (2007) 154 Cal.App.4th 1529, 1534 ["An appellate court's review is limited to consideration of the matters contained in the appellate record."].)
Further, the testimony of one witness, if believed by the jury, is sufficient to sustain a verdict. (People v. Watts (1999) 76 Cal.App.4th 1250, 1259.) Loss prevention manager Jauregui was familiar with Guzman from having seen him on previous occasions in the store and he identified Guzman as the man who took the vacuum cleaners out of the Visalia Target store. Accordingly, we also reject Guzman's sufficiency of evidence claim.
Additionally, we reject Guzman's remaining contentions because he does not cite any evidence in the record that supports these claims.
The Stayed Prior Prison Term Enhancement
"Once [a] prior prison term is found true within the meaning of section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken." (People v. Langston (2004) 33 Cal.4th 1237, 1241.) Thus, the court erred when it stayed Guzman's prior prison term enhancement instead of striking it.
Restitution to Target
"[I]n every case in which a victim has suffered economic loss as a result of the defendant's conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court. If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court. The court shall order full restitution." (§ 1202.4, subd. (f).)
The evidence at trial established that Guzman stole from the Visalia Target two Roomba vacuum cleaners valued at $399.99 each and a Dyson vacuum cleaner valued at $499.99, for a combined total value of $1,299.97 for the three vacuum cleaners. The court, however, ordered Guzman to pay the Visalia Target restitution of only $973.99. Thus, it appears the court erred by its failure to order Guzman to pay the Visalia Target $1,299.97 in restitution. However, because Guzman did not have a reasonable opportunity to be heard on the value of the vacuum cleaners, we will remand the matter to the trial court for it to recalculate victim restitution and to allow Guzman to be heard on this issue. (People v. Sandoval (1989) 206 Cal.App.3d 1544, 1550.)
Following an independent review of the record, we find that with the exception of the issues relating to the prior prison term enhancement and victim restitution, no reasonably arguably issues exist.
DISPOSITION
The judgment is modified to strike the prior prison term enhancement. The matter is remanded to the trial court for it to recalculate victim restitution and to allow Guzman an opportunity to be heard on this issue. As modified, the judgment is affirmed except for the order of victim restitution.