Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA300901, Harold I. Cherness, Judge.
Roderick W. Leonard; Jonathan B. Steiner and Ronnie Duberstein, under appointments by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
EPSTEIN, P. J.
Ricardo Paramo appeals from the judgment entered following a jury trial in which he was convicted of two counts of grand theft of personal property, counts 2 and 3, in violation of Penal Code section 487, subdivision (a) and found to have suffered a prior conviction of a serious or violent felony within the meaning of Penal Code sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) and three prior convictions of a serious felony and served prison terms within the meaning of Penal Code section 667.5, subdivision (b). He was sentenced to prison for five years, consisting, on count 2, of the middle term of two years, doubled pursuant to the Three Strikes law, plus one year for one of the prior prison term enhancements. On count 3, appellant was sentenced to a concurrent term of four years and one year for the prior prison term enhancement.
The court permanently stayed the two additional enhancements under Penal Code section 667.5, subdivision (b).
The evidence established that on March 17, 2006, Javier Sanchez and Antonio Lopez were working as mechanics at Two Friends Auto Work on Valley Boulevard in Los Angeles. That morning, Mr. Lopez and Mr. Sanchez had changed into their work clothes and left their street clothes with their wallets in the shop’s bathroom. At approximately 10:30 a.m., appellant came to the shop and asked to use the bathroom. A short time later when Mr. Lopez opened the bathroom door, he saw appellant holding Mr. Lopez’s pants. Appellant threw the pants down and left quickly. Mr. Lopez and Mr. Sanchez discovered their wallets were missing. Mr. Lopez had approximately $800 to $900 in his wallet and Mr. Sanchez had $1900 in his wallet.
On June 13, 2006, appellant’s Marsden motion was heard and denied. On that same date he requested that he be allowed to represent himself and was given Faretta waiver forms.
People v. Marsden (1970) 2 Cal.3d 118.
Faretta v. California (1975) 422 U.S. 806.
On July 6, 2006, the parties stipulated to bifurcate the trial on the issue of appellant’s prior convictions. On that date, appellant’s Wheeler motion was heard and denied.
People v. Wheeler (1978) 22 Cal.3d 258.
On July 11, 2006, appellant’s Marsden motion was heard and denied. On that same date, at the trial of the prior convictions, the court received certified copies of documents indicating appellant’s prior convictions pursuant to Penal Code section 969, subdivision (b). Appellant refused to be fingerprinted and the trial court made a finding verifying appellant was the same person identified in the prior conviction packet.
On August 25, 2006, appellant’s Marsden motion was heard and denied. On that same date, appellant’s motion to strike his prior serious or violent felony pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 was heard and denied.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On January 25, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. Pursuant to appellant’s request, he was granted an extension of time to file a supplemental brief to and including April 25, 2007.
On February 27, 2007, appellant filed a motion to augment the appellate record to include “the Probable Cause Declaration (presumably written by J. Tuck) that was never provided to Appellant, and that should most certainly exist; [¶] [] 9-1-1 discovery (transcript); [¶] [] The police reports of Los Angeles police officer, J. Tuck (Preliminary Investigation and Arrest Report); and [¶] [] the ‘subsequent report’ that trial counsel, Jeff Graves, claims to be in existence that clarifies the discrepancy between the unknown customer, who was reported to have witnessed the crime and Antonio Lopez, who, although not reported as observing the crime, eventually testified that he did.” On March 7, 2007, the motion to augment the record was denied.
On April 24, 2007, appellant filed his supplemental brief. In it, he claimed that he had been arrested at his home without an arrest warrant and the propriety of the arrest had never been placed at issue. Additionally, he faulted his defense counsel for not compelling the attendance at the preliminary hearing or trial of the police officer who took the police report or his partner. He noted the police report states that an unknown customer opened the bathroom door and saw appellant with the pair of pants. He faulted defense counsel’s representation, claiming other witnesses should have been called at trial to show that the testimony of Mr. Lopez and Mr. Sanchez was false. Appellant questions why the victims waited more than one hour to make their 911 call. He claims there was exculpatory evidence that the prosecution withheld. Appellant also challenges the rulings made on the Marsden and Faretta motions.
On June 4, 2007, he filed with the court a copy of a motion filed in superior court to compel discovery.
We have examined the entire record and are satisfied that no arguable issues exist. “We ‘“review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”’ [Citations.] We presume ‘“in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” [Citation.] This standard applies whether direct or circumstantial evidence is involved.’ [Citation.]” (People v. Prince (2007) 40 Cal.4th 1179, 1251.) To the extent appellant is claiming he received ineffective assistance of counsel, that claim is not supported by the appellate record. (See Strickland v. Washington (1984) 466 U.S. 668; People v. Bills (1995) 38 Cal. App.4th 953, 962.) The decision regarding which witnesses to call and what evidence to submit at trial are matters within the discretion of trial counsel and rarely implicate ineffective assistance of counsel. (See People v. McDermott (2002) 28 Cal.4th 946, 992.) Further, issues cognizable on appeal are confined to matters contained in the appellate record. (See People v. Pearson (1969) 70 Cal. 2d 218, 221-222, fn.1.) While appellant claims he was arrested at his home, there is no evidence of the circumstances of his arrest in the appellate record. Regarding appellant’s Marsden motions, he was given ample opportunities to explain his reasons for requesting new counsel and the record does not demonstrate the trial court abused its discretion in denying the motions. With reference to appellant’s Faretta motion, the record reflects that appellant was given waiver forms to complete but that he never followed up on the motion. Appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
The police report appellant attached as an exhibit to his supplemental brief recites he was in his van when he was called out and arrested.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J., SUZUKAWA, J.