Opinion
B226536
10-12-2011
THE PEOPLE, Plaintiff and Respondent, v. MERCELINE ONYANGO, Defendant and Appellant.
Mona D. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA354301)
APPEAL from a judgment of the Superior Court of Los Angeles County. Kathleen Kennedy-Powell, Judge. Affirmed.
Mona D. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
On March 19, 2009, Merceline Onyango set a fire outside an office door at the Hollywood YMCA homeless women's transitional shelter where she was living. Onyango, who was from Kenya, had just been served with an eviction notice because she refused to follow some of the shelter's rules and was disruptive. Inside the office were Program Director Elizabeth Olguin and Case Manager Kendra Sheppard. The two women first heard someone pounding on the office door with such force that the walls began to shake, causing items hanging on the walls to fall. They then heard Onyango screaming "open the door, fucking bitch," and "if you don't come out, I'm going to burn this motherfucker down and kill you bitches."
Olguin and Sheppard then saw flames and smoke coming from under and around the office door. They phoned 911 for help, and the police arrived and arrested Onyango. A security camera videotape showed Onyango pouring lighter fluid on the carpet outside the office door and then lighting it on fire. The video depicted the flames travelling as high as the doorknob.
Onyango was charged with one count of arson (Pen. Code, § 451, subd. (b)) and two counts of making criminal threats, one each as to Olguin and Sheppard (§ 422). A jury convicted Onyango of all three counts, and the trial court imposed a combined five-year state prison sentence.
Onyango filed a notice of appeal. On January 25, 2011, her appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) in which no issues were raised. The brief included a declaration from counsel that she had reviewed the record and had sent Onyango a letter advising her that such a brief would be filed and that she could file a supplemental brief if she chose to. That same day, this court sent Onyango a letter advising her that a Wende brief had been filed and that she had 30 days to submit a brief raising any issues she wanted us to consider.
An amended supplemental brief was filed by counsel with the permission of the court on February 16, 2011.
Onyango filed a letter brief that raised four potential issues: (1) her right to a speedy trial was violated because it took a year to bring her case to trial; (2) at the sentencing hearing, the trial court incorrectly stated that a five-year sentence was justified because Onyango had "burned down the YMCA and put many lives in danger," showing that "nobody was paying attention to [her]case."; (3) nothing was presented in her defense; and (4) she did not receive all the custody credits to which she was entitled. Under People v. Kelly (2006) 40 Cal.4th 106, 125, we discuss each contention.
We filed a decision affirming the judgment on June 27, 2011, but later granted Onyango's petition for a rehearing after she pointed out that we had not satisfied our obligation under Kelly to discuss the grounds raised in her letter brief. We do so now.
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1) Under Penal Code section 1382, a defendant must be brought to trial within 60 days of her arraignment unless she has waived that right. Onyango was arraigned on June 2, 2009, and a trial date of July 24, 2009, was set. Onyango waived the statutory time period on July 31, 2009, and between then and October 13, 2009, Onyango's lawyer brought various motions to continue or trail the matter. On October 15, 2009, her lawyer declared a doubt as to her competency (Pen. Code, §§ 1367-1368), and that matter was not resolved until December 23, 2009, when the court found her competent to stand trial and a January 22, 2010, trial date was set. Her right to a speedy trial was not violated during the pendency of the competency proceeding. (Craft v. Superior Court (2006) 140 Cal.App.4th 1533, 1543-1544.) The matter was trailed a few more times until February 8, 2010, when Onyango again agreed to waive the time period for bringing her case to trial. The matter was trailed or continued a few more times until March 15, 2010, when Onyango again waived time. Trial began on March 25, 2010. Based on this chain of events, we conclude that Onyango's right to a speedy trial was not violated.
2) At the sentencing hearing, the trial court struggled to balance Onyango's apparent mental problems with the dangerous nature of her crimes. Characterizing the videotape of Onyango setting the blaze as "chilling," the court rejected Onyango's claim that she was trying to communicate a cry for help according to her Kenyan traditions and said Onyango felt justified in setting the fire because she believed she had been slighted by the people running the shelter. Even if true, "that does not give rise to a justification on her part to hurt them, threaten them, or burn the YMCA down." We do not read this as a misunderstanding by the court that Onyango had actually burned down the YMCA. At most, it represents the trial court's view of the possible consequences of her actions. Despite that, the court rejected the prosecutor's request to impose the maximum term of eight years, and instead imposed a mid-term sentence of five years. In short, we reject Onyango's claim that the court was not paying attention.
3) As for the failure to present evidence, the record shows that her lawyer vigorously cross-examined the key prosecution witnesses. Without some suggestion as to what evidence she claims should have been offered on her behalf, we are unable to evaluate the contention and deem it waived.
4) Finally, the abstract of judgment shows that Onyango was awarded 496 days of actual days served custody credits. She was arrested March 19, 2009, and sentenced on July 27, 2010, a time period that encompassed 496 days. We therefore conclude she was awarded the proper number of custody credits.
After examining the entire record in light of Onyango's letter brief, we are satisfied that Onyango's attorney has fully complied with her responsibilities and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259; Wende, supra, 25 Cal.3d 436.)
DISPOSITION
The judgment is affirmed.
RUBIN, Acting P. J. WE CONCUR:
FLIER, J.
GRIMES, J.