Filed 6/21/17 P. v. Benefico CA4/3











NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL STEVEN BENEFICO

Defendant and Appellant.


G054199

(Super. Ct. No. 14HF1623)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
We appointed counsel to represent Michael Steven Benefico on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client but advised the court he found no issues to argue on his behalf. Counsel filed a brief following the procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). The court in Wende explained a Wende brief is one that sets forth a summary of proceedings and facts but raises no specific issues. Under these circumstances, the court must conduct an independent review of the entire record.
Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), to assist the court with its independent review, counsel provided the court with information as to issues that might arguably support an appeal. Counsel raised the following five issues: (1) did the trial court err by ruling Benefico could be impeached with prior convictions if he elicited testimony regarding his statements to the police; (2) did the court abuse its discretion when it denied Benefico’s new trial motion; (3) did the court err by instructing the jury with CALCRIM No. 376; (4) did the court err by instructing the jury with CALCRIM No. 372; and (5) did the court err by instructing the jury with a portion of CALCRIM No. 315.
We gave Benefico 30 days to file written argument on his own behalf. On April 17, 2017, he filed a supplemental letter brief. Two weeks later, he filed a second supplemental brief. When the appellant himself raises specific issues in a Wende proceeding, we must expressly address them in our opinion and explain why they fail. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.)
In his first supplemental brief, Benefico raised similar instructional errors. He further alleged his attorney “set [him] up” by advising him not to testify. He asserts “[t]he courts do not know all the facts in this case” and he is being “railroaded.” In his second supplemental brief, Benefico complained about a lawyer he had before he retained trial counsel and indicated that lawyer had failed to conduct timely discovery. He professed his innocence and provided a detailed account of his activities and whereabouts leading to his arrest, which we discuss below.
We have reviewed the record in accordance with our obligations under Wende and Anders, and considered the information counsel and Benefico provided. We found no arguable issues on appeal. The judgment is affirmed.
FACTS
One evening, Ann Levine returned to her home and went inside. When Levine went into her bedroom she heard a noise coming from the adjacent bathroom. Levine asked, “‘Who is there?’” and a male voice responded, “‘John Smith.’” Levine saw a tall white male run out the back door from her bedroom and go over the fence. Levine screamed and followed him.
When Levine went back into her home and into the bathroom, she found that a locked drawer had been forced open and was broken. She later discovered that an envelope in a dresser drawer in which her husband kept cash was torn and empty.
Adam Wright, Levine’s son-in-law, was also returning to Levine’s home with his wife and their baby. He did not enter the house with Levine. Wright heard Levine scream and saw a gate open and a man run down the side yard and go over an adjacent wall. Wright followed the man into the next driveway and saw him face-to-face from a distance of approximately five to eight feet. When the man went over a second wall, Wright went to the adjacent street. Wright saw the man again from approximately the same distance. The man retreated back into the trees from where he came. Wright described the man as being Caucasian, at least six feet tall, maybe taller, and was wearing black sneakers, blue jeans, and a black sweatshirt hoodie.
Orange County Deputy Sheriff Brian Fischer, who works in air support, was dispatched to the area of Levine’s house. Unsuccessful in Levine’s neighborhood, Fischer eventually located a “hot spot” consistent with a person nearby. Fischer directed deputies on the ground to the area. When the deputies moved into the area the suspect moved away and Fischer lost track of the suspect. Fischer then found another hot spot near a tennis court and directed the deputies to that area.
Orange County Deputy Sheriff William Burk, a K-9 officer, was dispatched to investigate a residential burglary in the area of Levine’s residence. Fischer advised Burk that he saw a suspect moving along a horse trail and hiding along the fence line between two houses. Burk set up his team at one house and made two loud K-9 warnings. He deployed his K-9. The K-9 went about 30 yards along the fence line and began sniffing as if he was smelling human odor. The K-9 continued to sniff along the fence line, but was unable to locate a suspect. Fischer advised Burk that he could see the suspect about three yards from the dog. Burk and his team worked through trees and brush with the K-9 on a leash and accessed a tennis court. Benefico was located lying on the ground near a tennis court and appeared to have attempted to hide by pulling brush over his body.
Deputies ordered Benefico to show his hands. Burk told Benefico to show his hands or he would release his dog to bite him. When Benefico did not respond the dog was released and Benefico was bitten. Deputies arrested Benefico. Benefico had $310 in cash in his possession.
Deputies advised Benefico of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). When Deputy Sheriff Eustacio Lopez asked him what he was doing in the area, Benefico said he had been jogging. When asked why he did not respond to the officers commands to show his hands, Benefico said he heard the commands, but he did not think they were talking to him. He explained he had gotten tired and was lying down to rest. At the time of his arrest, Benefico was wearing a dark sweater, blue jeans and skateboarding type shoes.


After Benefico was arrested, Orange County Sheriff’s Department Investigator David Holloway reviewed the helicopter pursuit video. Holloway observed the suspect who was later arrested near a fence and the suspect appeared to be digging. Later, Holloway went to the area that was depicted in the video. At that location he found a blue Maglight brand flashlight on the dirt. He also found two altered screwdrivers, two cuff links, a pair of earrings, and a short length of yellow chain. Holloway testified screwdrivers that have been altered in the same way as those he found could be used as burglary tools. Levine later identified the cufflinks as being her husband’s. She also identified the earrings and chain as belonging to her husband’s mother.
An information amended by interlineation charged Benefico with residential burglary (Pen. Code, §§ 459, 460, subd. (a), all further statutory references are to the Penal Code unless otherwise indicated) (count 1). The information alleged Benefico had four prior strike convictions (§§ 667, subds. (d), (e)(2)(A), 1170.12,
subds. (b), (c)(2)(A)), and two prior serious felony convictions (§ 667, subd. (a)). Prior to trial, Benefico waived his right to a jury trial on the priors.
Benefico also brought a number of in limine motions. One motion sought to exclude character evidence. Benefico clarified he was seeking to prevent impeachment evidence if he attempted to introduce portions of his statements to deputies. The court ruled that if Benefico offered portions of the statement that had not been offered by the prosecution, the prosecution could then seek to impeach Benefico with his priors. The court indicated that would trigger the court’s duty to engage in an Evidence Code section 352 weighing process to determine whether the evidence was more prejudicial than probative. In response to a question from defense counsel, the court clarified impeachment would only become an issue if the defense elicited a statement outside of what the prosecution presented.
After Lopez testified regarding Benefico’s statements, counsel asked to be heard outside the jury’s presence. Counsel indicated he wanted to elicit from Lopez a statement made by Benefico denying he had been in anyone’s residence. Counsel asked if he elicited this statement, would that would allow the prosecution to impeach Benefico with his priors. The court indicated that such a limited inquiry would not
A jury convicted Benefico of the residential burglary and the court found all the priors true. Benefico filed a motion for new trial. He argued the court erred by ruling that evidence of his prior convictions would be admissible without weighing that evidence as required by Evidence Code section 352. The court denied the new trial motion. There was no dispute the defendant never intended to testify. The court reasoned the weighing process had never been triggered. The prosecution had never sought to admit Benefico’s priors, and Benefico had never expressly asked the court to do so.
After finding all the strike priors were too remote, the trial court dismissed three of the four priors in the interests of justice. The court sentenced Benefico to the upper term of six years, and doubled that term because of the remaining strike. The court imposed two consecutive five year terms for the section 667, subdivision (a), allegations for a total sentence of 22 years in prison. Benefico filed a timely notice of appeal.
DISCUSSION
Having found the issues counsel raises pursuant to Anders to be without merit, we proceed to the issues Benefico raises in his supplemental briefs. Benefico alleges he received ineffective assistance of counsel. Benefico insists he is innocent of the crime for which he was convicted, and he provides a detailed factual account that is consistent with his innocence. He also asserts various claims of error.



Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel is more appropriately decided in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264,
266-267.) The defendant must show that counsel’s action or inaction was not a reasonable tactical choice, and in most cases “‘“the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged . . . .”’” (Id. at p. 266.) Accordingly, we decline to address Benefico’s claims of ineffective assistance of counsel as part of this appeal.
Additional Facts and Claims of Innocence
Benefico essentially asks us to augment the record with the information he provides in his supplemental briefs and reweigh the evidence. As for the roughly $300 in cash on his person, Benefico explained he had the cash because he was going to the swap meet early the next morning. Benefico also explained he had pulled off the freeway in the vicinity of his arrest because of leg cramping. As he was walking and stretching his leg, a six-foot, three-inch man walked past him. He later observed someone in black or dark clothing running across an intersection and dive over something. He denied hiding anything in the area where the victim’s belongings were found. Benefico explained he had seen movement in the area and merely went to check it out. As for being found in the ivy, Benefico recounted “[he] went for cover because everything was [happening] so fast, [he] didn’t know exactly what was going on, and [he] didn’t want any problems in case [the police] were after the person [he saw] running across the street.” Benefico also alleges he overheard a deputy at the hospital on the phone discussing a suspect named “Jim or Jimmy Smith.”


We deny Benefico’s request to augment the record on appeal with these facts not presented at trial. “‘Appellate jurisdiction is limited to the four corners of the record on appeal . . . .’ [Citation].” (People v. Waidla (2000) 22 Cal.4th 690, 743.)
To the extent Benefico questions the sufficiency of the evidence, the standard of review is clear and well settled. “We ‘“‘must 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.’”’ [Citation.] . . . ‘Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.’ [Citation.]” (People v. Brooks (2017) 2 Cal.5th 674, 729.) Benefico’s conviction is supported by substantial evidence.
CALCRIM No. 372
In California, the prosecution is entitled to a flight instruction not because such evidence is free of ambiguities or will not complicate the jury’s task, but simply because section 1127c makes the instruction mandatory when supported by the record. (People v. Cannady (1972) 8 Cal.3d 379, 391.) Here, the record supports a conclusion Benefico was running from the crime scene and from the deputies who were pursuing him. The trial court did not err in giving CALCRIM No. 372, the flight instruction.
CALCRIM No. 315
A court can properly give an instruction that lists the applicable factors in a neutral and nonargumentative instruction. (People v. Wright (1988) 45 Cal.3d 1126, 1143-1144.) CALCRIM No. 315, listing the factors to consider when evaluating eyewitness testimony, does just that. The court did not err in giving CALCRIM No. 315.
We find the issues raised by Benefico in his supplemental briefs to be without merit.


DISPOSITION
The judgment is affirmed.



O’LEARY, P. J.

WE CONCUR:



BEDSWORTH, J.



THOMPSON, J.