Opinion
B162520.
7-22-2003
THE PEOPLE, Plaintiff and Respondent, v. MARCOS OCHOA, Defendant and Appellant.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Appellant Marcos Ochoa appeals from a judgment entered after a jury convicted him of second degree burglary. The court sentenced him to three years in prison.
We appointed counsel to represent appellant on appeal. After examination of the record, counsel filed an opening brief raising no issues and asking this court to independently review the record. On March 7, 2003, we advised appellant he had 30 days within which to personally submit any contentions or issues he wished us to consider. Appellant submitted a letter asking us to appoint a different attorney and referring to his belief that sufficiency of evidence and ineffective assistance of trial counsel issues should be raised. We denied his request for a different attorney.
We have examined the entire record and are satisfied appellants attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441, 158 Cal. Rptr. 839, 600 P.2d 1071.)
In the absence of argument and authority, appellants cursory contentions regarding the sufficiency of evidence and ineffective assistance of counsel are not properly raised. (People v. Gionis (1995) 9 Cal.4th 1196, 1214, fn. 11, 892 P.2d 1199.) Nonetheless, our review of the record revealed no acts or omissions even arguably constituting objectively unreasonable performance by Ochoas trial counsel, Mr. Kim. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218, 233 Cal. Rptr. 404, 729 P.2d 839.) By motion in limine, Kim successfully precluded the prosecution from introducing prejudicial hearsay evidence regarding prior misconduct by appellant. During the trial, Kim made a number of successful evidentiary objections and vigorously cross-examined each prosecution witness. Upon Kims request, the court added a previously overlooked instruction potentially beneficial to appellant. Kim successfully moved, under Penal Code section 1118.1, for acquittal on a charge of petty theft with a prior. Indeed, the only error this court found was counsels miscalculation-by one day-of appellants pre-sentence custody credits. Because the trial court corrected this error as soon as appellate counsel pointed it out via ex parte motion, appellant suffered no prejudice from this minor error. Accordingly, appellants conclusory ineffective assistance of counsel claim has no merit.
Nor is there any merit to appellants sufficiency of evidence claim. A defendant commits burglary when he enters a building with the specific intent to commit larceny or any felony. (Pen. Code, § 459; People v. Montoya (1994) 7 Cal.4th 1027, 1041, 874 P.2d 903.) The manager and assistant manager of the Blockbuster testified they each saw appellant conceal rental DVDs inside the sleeves of his jacket. When the police car arrived outside the building, appellant removed the DVDs from his sleeves, placed them atop a box, and walked out. This testimony provided substantial evidence from which the jury could find, beyond a reasonable doubt, that appellant entered the store with the intent to commit larceny. (People v. Ceja (1993) 4 Cal.4th 1134, 1138, 847 P.2d 55.)
DISPOSITION
The judgment is affirmed.
We concur: COOPER, P.J., RUBIN, J.