Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. C152344
Haerle, Acting P.J.
I. INTRODUCTION
After an eight-day jury trial (see CT 270), appellant was convicted of one count of burglary of a car. (Pen. Code, § 459.) He then waived a jury on the trial of three alleged prior convictions resulting in prison terms and admitted those convictions. The court then found those priors to be true, but dismissed two of them and sentenced appellant to a total of four years in state prison. Appellant filed a timely notice of appeal and then, pursuant to People v. Wende (1979) 25 Cal.3d 436, filed a brief with this court asking us to review the record and determine if there are any issues deserving of further briefing. We have done so, find none, and hence affirm the judgment.
All further statutory references are to the Penal Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
Early in the morning of March 10, 2006, Alameda County Deputy Sheriff Colston was on his way to work at the Oakland courthouse where he worked as a bailiff. He was walking along Oak Street in a jogging suit, although carrying with him his identification, badge, handcuffs, and a weapon. Near the corner of 10th and Oak Streets, Colston noticed broken car window glass on the sidewalk and street near an unoccupied parking space. A bit later, he also saw a duffel bag, bicycle, and bolt cutters with a long, black metal pole as part of the handle lying near a tree.
All subsequent dates noted are in 2006.
Two blocks later, near 12th and Oak Streets, Colston saw more broken glass on the sidewalk, near the first parking meter from the corner. At that meter was parked a silver 2000 Honda Civic with its driver’s side window smashed out. Looking into the car, Colston saw a Black male, who he identified at trial as appellant, sitting on the driver’s side of the car using a screwdriver to try to pry the dashboard apart; Colston could even see some wiring sticking out from the already-detached portion of the dashboard. He also saw a green carry-on suitcase on the front passenger seat of the Honda.
Colston asked appellant if the Honda in which he was sitting was his car; appellant replied that he was waiting for someone. Colston then produced his badge, told appellant he was a deputy sheriff, and asked him to exit the car; before doing so, however, appellant dropped the screwdriver he was holding inside the car. Although appellant started to walk away from the car, Colston told him to stop and lie on the ground, where Colston handcuffed him; in the process of so doing, Colston found another screwdriver in appellant’s rear waistline. Colston then called the Oakland police department which dispatched first Officer Tom and later Officers Osanna and Humphrey to the scene to take custody of appellant from Colston.
Among other things Officers Tom and Osanna observed at the scene were the facts that the Honda’s window had been smashed out and its dashboard damaged. They also found a screwdriver on or near the driver’s seat, a suitcase containing personal items on the front seat, a green duffel bag containing a set of bolt cutters sitting some two to three feet from the rear wheel on the driver’s side of the car, and a bicycle near it.
The officers were, at the time, unable to locate the Honda’s owner, so the vehicle was towed. It subsequently developed that it was owned by one Cheryl Fidelman, who lived on Oak Street and who had parked her Honda there earlier that morning. When she parked it, it was locked, the windows rolled up, and the dashboard in good condition. She did not know appellant and had not given him permission to be in her car.
On April 26, the Alameda County District Attorney filed a one-count information charging appellant with, as noted, a violation of section 459. That information also alleged that appellant had suffered three prison priors within the meaning of section 667.5, subdivision (b). Two other prior convictions were also alleged.
Appellant pled not guilty and denied all the prior conviction allegations.
Appellant was tried before a jury starting on June 21. All the witnesses who testified were called by the prosecution; the defense called no witnesses. Pursuant to Evidence Code section 1101, subdivision (b), the prosecution’s case included evidence of two similar car burglaries in which appellant had been identified as the burglar; one occurred in Oakland in 2000 and the other in Berkeley in 2004.
The presentation of evidence concluded on July 5. The following day, after the substitution of an alternate juror for one excused for a family emergency and the consequent recommencement of deliberations, the jury deliberated for less than an hour before reaching its verdict.
On August 3, the court sentenced appellant to, as noted earlier, a total of four years in state prison. The court chose the aggravated term of three years for the charged burglary offense because of appellant’s several prior convictions. It added a fourth year for one of the prison priors, i.e., appellant’s conviction in 2004 for possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)). The court then struck the remaining charged priors. Appellant was also ordered to pay a $200 restitution fine pursuant to section 1202.4; a similar parole restitution fine was, however, stricken. Appellant was given total custody credits of 219 days.
Appellant filed a notice of appeal the following day.
III. DISCUSSION
Both before and during trial, appellant was represented by an experienced (“almost eight years”) deputy public defender of Alameda County. That counsel prepared and filed, on behalf of appellant, a motion in limine in advance of trial, a motion to dismiss the action or for sanctions for the alleged destruction of relevant evidence by the Oakland Police Department, several editions of proposed jury instructions, a memorandum to the court regarding the sentencing of appellant, and a motion for a new trial. All were, in our view, done quite professionally.
The same counsel also cross-examined the prosecution’s witnesses thoroughly and professionally, made appropriate and timely objections to the admissibility of various portions of the prosecution’s evidence, and presented both opening and closing statements to the jury. In his closing argument, appellant’s counsel conceded that, although his client may have been guilty of the crime of “auto tampering,” there was insufficient evidence to find him guilty beyond a reasonable doubt of burglary of Ms. Fidelman’s Honda. He based this argument on, first of all, the law that a criminal defendant is presumed innocent, that the burden of proof to establish guilt is on the prosecutor, and that the standard of proof the prosecutor is required to meet is “beyond a reasonable doubt.” He then argued that this standard had not been met because there was reasonable doubt about appellant’s guilt because (1) there were no eyewitnesses to appellant breaking into or entering the Honda, (2) parts of Deputy Colston’s testimony about what he saw and found at the scene were not credible, (3) the police lost or destroyed some of the physical evidence they claimed they found at the scene, and (4) the fact that, a block or so away from the Honda where appellant was found was evidence of another break-in of a car, but no car. Appellant’s counsel’s theory was that another person had broken the window of the Honda and gotten into it, started to pull off its dashboard, but then abandoned that effort and went further down on Oak Street and broke into, and then stole, another car.
We have also reviewed the key rulings made by the court and find no error in them. For example, in support of his motion for a new trial, appellant’s trial counsel relied on the arguments that (1) there was insufficient evidence that the vehicle was locked when parked by its owner on Oak Street and, additionally, evidence that the vehicle’s windows had been broken and the Honda entered before appellant’s arrival at the scene and (2) the trial court erroneously overruled his objections to that portion of the prosecutor’s rebuttal closing argument in which the theory of a prior break-in had been characterized as “wild speculation.” We have reviewed the record in regard to both bases for the new trial motion and find no error in the trial court’s rejection of them.
Regarding the aggravated sentence imposed by the court on the automobile burglary count charged in the indictment, appellant’s trial counsel argued to the lower court that any such aggravated sentence would have to be based on findings made by a jury. However, since the date of that argument (July 2006), both the United States Supreme Court and our Supreme Court have held that a California trial court may, without referring any factual issue to the jury, impose an aggravated sentence based on the prior convictions of a criminal defendant. (See Cunningham v. California (2007) ___U.S. ____ [127 S.Ct. 856] and People v. Black (2007)41 Cal.4th 799.) That was precisely the basis articulated by the trial court here.
In short, we have carefully examined the record in this case, and find no issues deserving of further briefing.
IV. DISPOSITION
The judgment of conviction is affirmed.
We concur: Lambden, J., Richman, J.