Opinion
G055732
06-19-2018
THE PEOPLE, Plaintiff and Respondent, v. KATHLEEN MARIE STEWART, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16WF1618) OPINION Appeal from a judgment of the Superior Court of Orange County, Melissa R. McCormick, Judge. Affirmed. Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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FACTS
Kathleen Marie Stewart was convicted by a jury of grand theft and second degree burglary for breaking into a storage unit and stealing band equipment. The court sentenced her to the upper term of three years on the grand theft, but ordered it served in the county jail and suspended a year of that under Penal Code section 1170, subdivision (h)(5); it stayed punishment on the burglary conviction under Penal Code section 654.
While defense counsel put up an exemplary fight in the trial court - including a half-dozen pre-trial motions that went as far as efforts to preclude the prosecution from asking questions using certain wording - the facts of the case were overwhelming. At 10:30 on the morning of June 23, 2016, the manager at a storage facility found the hasp on a unit broken and reattached with duct tape. The owner was contacted and it was determined that $25,000 in band equipment was missing. It was also determined there was a large hole in the drywall between the unit with the broken hasp and the adjacent unit - damage that could only be viewed from inside the units.
That adjacent unit was rented by appellant, and surveillance footage from the previous night showed her loading equipment onto her trailer from 8:00 p.m. until 7:00 a.m. (3 1/2 hours before the manager found the broken hasp). Some of the things appellant was loading were identified by the owner of the victimized unit as his. Appellant's fingerprints were on the broken hasp.
Appellant said the owner was mistaken about the equipment she was loading. She said it was hers and she produced what she said was a receipt for the items she was loading that night. She provided photographs of items she said were the ones seen in the surveillance footage, but had to concede the only photos she had of those items were taken seven months after the theft. She explained footage of her peering furtively at the window of the facility was related to her concern that it might be closing, rather than any concern about being seen at those unusual times. She did not, however, have any explanation for her fingerprints on the broken hasp. The jury convicted her in two hours.
DISCUSSION
Appellant filed an appeal, and we appointed counsel to represent her on that appeal. Counsel filed a brief which set forth the facts of the case. He did not argue against his client, but advised the court he could find no issues to argue on her behalf. Appellant was invited to express her own objections to the proceedings against her, but did not. Under the law, this put the onus on us to review the record and see if we could find any issues that might result in some kind of amelioration of appellant's lot. (People v. Wende (1979) 25 Cal.3d 436.) It should be emphasized that our search was not for issues upon which appellant would prevail, but only issues upon which she might possibly prevail.
We have examined the record and found no arguable issue. This is not surprising. In fact, it is what we find in the vast majority of cases in which appellate counsel files a Wende brief. Criminal appellate attorneys do not give up easily, and even the most cynical observer of the legal system would have to recognize that appellate counsel has a financial incentive for finding issues. The simple fact is counsel makes more money if he/she finds an issue that is arguable than if he/she does not. So while it sometimes happens that an appellate court will find issues after appellate counsel has thrown in the towel, it is unusual.
This case is not unusual - at least not in any way that benefits appellant. The case against her was unusually strong, but that is the only thing remarkable about it. The first line of inquiry in a case like this is usually sufficiency of the evidence. But the evidence here was not only considerably greater than the legal standard requires, it was overwhelming.
The pretrial motions of appellant's trial counsel were carefully considered and produced thoughtful, appropriate rulings. The testimony was unremarkable, the instructions unobjectionable, and the sentence quite reasonable (the prosecutor objected to the court's decision to employ a "split sentence" and defense counsel would have been hard-pressed to argue his client, with two prior felonies, deserved less). In short, we have searched for other issues and we have found none that we think has any chance of success. We believe counsel's decision to file a Wende brief was well-advised. The judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: IKOLA, J. GOETHALS, J.