Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF151461, Christian F. Thierbach, Judge.
Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
McKinster, Acting P.J.
INTRODUCTION
On October 28, 2009, an information charged defendant and appellant Steven Hector Lopez with burglary of an inhabited dwelling house under Penal Code section 459 (count 1); and possession of stolen property under section 496 (count 2). The information also alleged that defendant suffered two prior convictions for robbery, serious and violent felony convictions within the meaning of section 667, subdivisions (c) and (e)(2)(A), and section 1170.12, subdivision (c)(2)(A). The information further alleged that defendant served a prior prison term within the meaning of section 667.5, subdivision (b).
All statutory references are to the Penal Code unless otherwise specified.
A jury convicted defendant on both counts. Thereafter, defendant admitted the two prior strike convictions and that he served a prior prison term.
The trial court denied defendant’s motion to strike one or both of defendant’s prior strike convictions. Thereafter, the trial court sentenced defendant to an indeterminate term of 25 years to life in prison on count 1 and stayed a prison term of 25 years to life on count 2, under section 654. The court then imposed an additional one-year determinate sentence for the prior prison term and specified that the determinate term was to be served first. The indeterminate term was to be served consecutively.
Defendant filed a timely notice of appeal.
FACTUAL AND PROCEDURAL BACKGROUND
1.
FACTUAL BACKGROUND
On July 8, 2009, around 10:30 a.m., Deputy Kowalewski was on patrol in Perris, California, driving south on Museo Street when he saw “a blue Silverado” truck parked at a dead-end street. Deputy Kowalewski noticed that the truck had no front license plate and tinted windows. The truck starting to pull away after someone entered through the passenger door. The deputy stopped the truck and contacted the driver, Erik Mendibles; defendant was a passenger in the truck.
Mendibles gave the deputy permission to search his truck. When the deputy opened the door for the rear of the cab of the truck, he saw several items of electronic gear—a laptop case with a laptop, a backpack with a Sony DVD player, a Sony PlayStation II, a satellite receiver box, and a sweatshirt that was wrapped around an electronic receiver. The mouse to the laptop was marked with the name, “Tan Tran.”
Ultimately, Deputy Kowalewski and other officers determined that the items found in the truck came from a house about 30 yards from where the truck was stopped. Deputy Kowalewski arrested defendant. Defendant gave a recorded statement. At first, defendant stated that all the electronic gear found in the truck was his property. Defendant, however, eventually stated “that he entered the residence and took them.” The audio recording of defendant’s statement was admitted into evidence and played for the jury. As will be discussed in more detail below, during trial, however, defendant testified that he was not honest with the police when they interviewed him.
Mendibles testified as a prosecution witness. He stated that on the morning of July 8, 2009, defendant’s brother, Paul Lopez (Lopez), telephoned Mendibles and asked for a ride. Mendibles agreed; he met Lopez and defendant near the corner of Museo and Ellis Streets. The Lopez brothers were each carrying a backpack, which they put into Mendibles’s truck. Lopez stated that he had dropped something. Hence, Mendibles turned around and drove back to the place where he initially picked up the Lopez brothers. After they got out of the truck, Mendibles lost sight of them as they disappeared behind nearby houses. Defendant returned and got back into the truck. When Mendibles drove away, the police stopped his truck.
According to Lopez, early in the morning of July 8, 2009, Mendibles gave him a ride to pick up his paycheck. The paycheck, however, was not ready so Mendibles dropped Lopez off at his house. Thereafter, Lopez received a call from a friend known by his tagger name, “Sykes.” Sykes asked Lopez to help him “move some stuff” from a house. They met at the corner of Perris and Ellis and walked to a nearby house. They entered a house and “[j]ust grabbed whatever we could carry and proceeded to go outside.” Lopez carried a PlayStation II and a television set. He did not see what Sykes took out of the house. Lopez called defendant and asked him to help carry things they had taken. Lopez did not tell defendant that the items were stolen. Because Lopez was not sure that defendant would come to help, he also called Mendibles. Defendant and Mendibles arrived “pretty much at the same time.” Lopez did not tell either of them that the items were stolen. Lopez, defendant, and Mendibles loaded the items into Mendibles’s truck.
When Lopez saw a police officer coming, he moved out of sight. The truck then pulled away with the police car in pursuit. Lopez went into the backyard of the house. Lopez then walked down the street past the police as they arrested defendant and Mendibles. Lopez proceeded home. He was arrested and interrogated later that day. However, Lopez did not tell the truth because he did not want to get in trouble. He told the police that he had entered the house, but not that he had taken the items from the house. During Lopez’s testimony, he admitted that he gave inconsistent statements to the police.
Lopez was charged with possession of stolen property and pled guilty. He admitted that when he testified, he could not be charged with a crime in connection with the facts of this case.
Defendant testified that on the morning of July 8, he was at his father’s home and received a telephone call from his brother. Lopez asked defendant to meet him “around the corner at the dead ends [sic] of Ellis” about three and a half blocks away, to help him and a friend with something; Lopez did not explain any further. Lopez did not say that he had burglarized a house or that he had stolen anything. Defendant met Lopez at the corner and Mendibles pulled up in his truck. Lopez had a backpack, another bag, and a “sweatshirt or something.” At Lopez’s request, defendant agreed to help put the goods in the truck. Lopez stated that his friend had gone around the corner. The three of them then drove away in the truck. After they had gone a short distance, Lopez told Mendibles to turn around; they returned to the place they had met. Lopez got out of the truck and asked defendant to do the same. Defendant stayed in a place behind the truck. When defendant saw a police car, he got back in the passenger seat and Mendibles drove past the police car.
The police stopped Mendibles’s truck. Defendant did not know what was in the bags that he had helped to load into the truck. He did not know the items were stolen, and he did not enter the house from which the items were taken. Defendant admitted that he was not honest with the police when they interviewed him. During the interview, defendant told the police that the items found in the truck were his because he had always regarded what belonged to him as also his brother’s property, and vice versa. Also, defendant did not want to see his brother get into trouble. Defendant stated that if his brother did something wrong, defendant wanted to take the blame. Defendant admitted that he had previously been convicted of two robberies, second degree burglary, and taking a vehicle without the owner’s consent.
Moreover, defendant testified that when he told the police where the television and PlayStation II were, he was simply guessing. He knew that there had been a television stolen because he saw it with the PlayStation II at the police station. However, when the prosecution recalled Deputy Kowalewski, the deputy testified that the television was recovered and brought into the police station after the recorded interviews. Therefore, defendant was unable to see the television in the police station prior to his interview. Defendant went on to state that he did not think that there was anything amiss when he saw his brother standing on a corner, holding a backpack, a bag and something wrapped in a sweatshirt. Defendant admitted that the items, however, must have come from a house. He believed that his brother had met a friend who needed some help.
2.
PROCEDURAL BACKGROUND
A.
Motion for Mistrial
Defense counsel moved for a mistrial on the grounds that the prosecutor made an improper argument during his opening statement:
“... based on misconduct in arguing that Erik Mendibles’[s] record should be no surprise to the jurors because of the company he keeps. And I don’t know why [the prosecutor] would have argued that. It is clearly trying to introduce or at least raise 1101 and 1103 bad character evidence regarding Paul Lopez and [defendant] when that would clearly be inadmissible in this case. [¶] And there is simply no justification for it, and it is clearly misconduct. The conduct that Erik Mendibles was convicted of in 2003 and 2000[, ] there is no link between [defendant] and Erik Mendibles at that time. So the suggestion that Erik Mendibles’[s] record is somehow attributable to the defense in this case is completely unsupported and clearly inadmissible use of character evidence.”
In the prosecutor’s opening statement, he stated:
“You’ll hear Erik Mendibles testify. [¶] You’ll find out he has had some trouble with the law. He has had some prior convictions. He has been convicted of domestic violence. And he was convicted of a commercial burglary when he was a juvenile. And he is in trouble with the law in this case. [¶] You’ll hear he is receiving immunity when he testifies today. That means nothing he says in court will be used to prosecute him. You’ll hear no promises were made by the police. He was never arrested and charged in this case, but because he has the right not to incriminate himself he is going to receive immunity anyway. [¶] Erik will tell you what he saw. You shouldn’t be surprised he has a bad past, because you’ll find out about the company he keeps.”
In response to the motion for mistrial, the prosecutor admitted that the comment defense counsel complained of was “probably slightly gratuitous” and “wasn’t explained properly, ” but nevertheless had “nothing to do with character evidence.” Instead, the prosecutor explained he was simply referring to “what they are accused of. What the defendant is accused, and what his brother came in here and claimed that he did. I think the statement of Erik Mendibles is a person with a bad record and hangs out with other criminals is not any kind of ground for mistrial.”
After hearing argument of counsel, the trial court ruled that there was no prejudicial error in the comments and denied defendant’s motion. The court stated:
“Well, it was probably inappropriate argument, but we have already heard testimony from Mr. Mendibles that both the Lopez brothers were involved in this. He observed them both carrying backpacks full of items placed in his truck. [Defendant’s] recorded statement to the officers was played before the jury. He admitted burglarizing the home and removing items. I know what is coming from you, but under the circumstances based on the evidence presented[, ] the Court finds no prejudicial error in the comments. So mistrial is denied.”
B.
Admission of Paul Lopez’s Recorded Statement
Defense counsel objected when the prosecutor sought admission of the recorded police statement of defendant’s brother, Paul Lopez. The court admitted that it had not heard “the whole tape” and had “no idea what is in there other than the representation that [defense counsel] made that it’s rife with inconsistent statements.”
Defense counsel argued that Lopez’s statement was unduly prejudicial. Moreover, defense counsel stated that, although Lopez could be impeached, it “is a separate issue from whether or not the police then get to introduce every bad thing that he said about his brother in a statement to the police before a case has been filed.” Thereafter, defense counsel presented the portions of Lopez’s recorded statement he found to be objectionable.
After hearing defense counsel’s lengthy argument, the court admitted the recorded statement of Lopez. The court stated:
“Over defense objection the Court will admit the recording pursuant to Evidence Code section 356. I do so after conducting in my own mine [sic] an Evidence Code Section 352 analysis. Sure there is prejudicial material on there. The question is whether the prejudicial effect out weighs [sic] the probative value, and in this case[, ] it does not.”
The court went on to state:
“[Lopez] is your witness. This goes directly to his credibility. That is why it is being admitted. This is impeachment material. You ran that risk and you knew you were running that risk when you put him on the stand.”
The trial court further explained its ruling:
“Well, it became admissible, that last one in particular, when your client took the stand. In that interview he spends the whole time blaming his brother, trying to lay it on his brother. He comes in here and he says his brother had no idea what was going on. He was just there to help in response to a phone call. And everything that you have illuminated here is inconsistent with what he testified to here. [¶] And, again, I emphasize that is the risk you run when you put a witness like that on the stand. So your point is well taken. You’ve made your record. And if the Court of Appeal ever sees this, I’m sure it will be one of the major issues.”
ANALYSIS
After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
We concur: King, J., Miller, J.