Filed 11/26/18 P. v. Cervantes CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Maria D. Hernandez, Judge. Affirmed.

William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

We appointed counsel to represent Daniel Julio Cervantes 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 Cervantes’s behalf. We gave Cervantes 30 days to file written argument on his own behalf. That time has passed, and Cervantes has not filed any written argument.

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. 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 (Kelly).) Cervantes did not raise any issues himself.

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 issues:

(1) whether the trial court erred by admitting evidence pursuant to Evidence Code section 1101 in the prosecution’s case-in-chief; (2) whether the court erred by granting the prosecution’s motion in limine to preclude the testimony of a defense expert; (3) whether the court erred by denying Cervantes’s motion in limine seeking to preclude his

post-Miranda[1] statements; and (4) whether the court abused its discretion by denying Cervantes’s motion to strike his prior robbery conviction for purposes of sentencing.

We have reviewed the record in accordance with our obligations under Wende and Anders and considered the information counsel provided. We found no arguable issues on appeal. We affirm the judgment.

FACTS

About 4:40 a.m. one morning, the victim awoke in her dark bedroom and saw Cervantes standing next to her bed looking around the room. As the victim was getting out of bed, Cervantes put his foot on the night table and jumped out the window. The victim’s daughter called the police. The daughter never saw Cervantes in the house.

While the police interviewed the residents of the house, Cervantes was seen running toward a neighboring house where police apprehended him. Nothing was missing from the neighboring house. Detective Jesse Alfonso was the third officer to arrive at the scene, and as a Spanish speaker, was tasked with interviewing the victim. The victim identified Cervantes as the man in her house.

PROCEDURAL HISTORY

An information charged Cervantes with first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a)) (count 1), and alleged the residence was occupied during the commission of the burglary (Pen. Code, § 667.5, subd. (c)(21)). The information alleged Cervantes suffered a serious and violent felony conviction (Pen. Code, §§ 667, subds. (d) & (e)(1), 1170.12, subds. (b) & (c)(1)), and a prior serious felony (Pen. Code, § 667, subd. (a)(1)).

Prior to the commencement of trial, the prosecution sought to exclude or limit the testimony of two defense experts, Dr. Sean Sterling and Dr. Suzette

Glasner-Edwards (Glasner). The prosecution indicated it had received late and incomplete discovery on both experts and it objected to admission of any hearsay information the doctors received. The defense indicated it did not necessarily intend to call Sterling, but intended to call Glasner. The defense addressed People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), and People v. Williams (2016) 1 Cal.5th 1166 (Williams). The defense argued Sanchez was geared toward the use of hearsay by the prosecution and she did not believe the Sanchez holding should apply equally to the defense. As to Williams, the defense conceded this case applied the Sanchez analysis to a defense expert, but she did not agree with the Williams holding. The court ordered the defense to provide the missing discovery relative to the two experts and granted the motion to exclude Sterling’s testimony absent a further showing from the defense. As to Glasner, the defense agreed to the prosecution’s request that Glasner limit her testimony to educate the jury on the symptoms of methamphetamine psychosis and how a person suffering from the disorder would act. Subject to the Sanchez/Williams limitation on her testimony, the court allowed Glasner to testify.

Pursuant to Evidence Code section 1101, subdivision (b), the prosecution sought to introduce the facts of Cervantes’s prior 2016 burglary asserting this evidence was proper to prove intent. The defense agreed intent would be an issue. The defense argued that although there were similarities between the current offense and the prior, the conduct was not identical. The defense noted the proximity of the two offenses and argued the prior should be excluded under Evidence Code section 352 as it was more prejudicial than probative. Having considered counsel’s argument, the court ruled the prejudicial effect did not outweigh the probative value and allowed the evidence.

The defense sought to exclude Cervantes’s post-Miranda statements because they were not voluntary and there was an insufficient showing Cervantes understood his rights. The court noted that although the quality of the recording was poor, it was clear the officer asked clarifying questions. The court commented it was unaware of any case law that held an officer’s statement that suggests the process be expedited renders the defendant’s statement involuntary. After listening to the recording of the interview again, the court found there were a number of inaudible statements but concluded the advisements were unambiguous. The court also found there was no evidence any statement by the police overtook Cervantes’s free will. Based on the totality of the circumstances, the court denied Cervantes’s motion to exclude his

post-Miranda statements.

At trial, Officer Sarah Moeller testified she arrived at the residence and saw that a window screen was removed at the west side of the residence. When Cervantes was detained, he told Moeller he believed he was being chased by demons. Police discovered a steel multi-tool on the ground of a neighbor’s yard. Moeller testified Cervantes was combative with police on the way to the station, and screamed obscenities at them including “‘Fuck you, pigs.’” At the police station, Cervantes admitted he entered the victim’s home through a window. Cervantes said he had taken multiple drugs. When police asked him what he was looking for in the house, Cervantes said, “‘nothing, possibly money.’”

Cervantes testified that at the time of the burglary he was homeless and living on the streets. Prior to being homeless, he was working and renting a room. When his work hours were cut, he had to give up the room because he could not pay the rent. Cervantes admitted to using marijuana, methamphetamines, narcos, Vicodin, and Xanex. He knew that most of these drugs required prescriptions, but he had none. The week prior to the burglary, Cervantes had been using drugs in large quantities. Because he was homeless, Cervantes was attempting to stay up all night and sleep during the day so no one could take advantage of him. On the night of the burglary, Cervantes had been awake for a few days. When he entered the house, he was scared for his life and entered the residence for refuge. He believed a car was following him and “demons” were chasing him. He was very paranoid and hearing noises. He could not remember everything about the night of the burglary but testified he did not enter the residence to steal. When police arrested him, Cervantes described his memory of the night as being kind of a blur. He also admitted drug use caused him to black out.

Glasner, a licensed clinical psychologist, who acts as a clinical researcher and professor at the University of California, Los Angeles in the Department of Psychiatry and Nursing testified for the defense. She testified drug users may experience psychosis and feel out of touch with reality, including experiencing hallucinations or delusions. Psychosis is more commonly found in people using stimulants such as cocaine and methamphetamines. Glasner opined a casual user of methamphetamine would not be as high a risk of psychosis as a methamphetamine addict. She also indicated certain subgroups like Asian-Americans and Hispanics ages 18 to 25 are at a high risk of developing methamphetamine use disorder. Sleep deprivation can also lead to methamphetamine psychosis.

A jury found Cervantes guilty of count 1 and found true the allegation the residence was occupied during the burglary. Cervantes admitted he had suffered a conviction in Orange County Superior Court case No. 16NF1939 for robbery (Pen. Code, § 211), committed on July 20, 2016.

Defense counsel asked the trial court to exercise its discretion and dismiss and strike Cervantes’s prior strike for purposes of sentencing. Counsel argued Cervantes was young and did not have the opportunity after his first conviction to become rehabilitated before the instant offense. After considering all the relevant circumstances, the trial court denied the defense’s motion to strike the prior. The court sentenced Cervantes to an aggregate sentence of nine years composed of the low term of two years on count 1, doubled to four years due to his prior strike conviction, plus a consecutive five year term for his prior serious felony conviction. Cervantes filed a timely notice of appeal.

DISCUSSION

A review of the record pursuant to Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, including the possible issues raised by appellate counsel, has disclosed no reasonably arguable appellate issue.

DISPOSITION

The judgment is affirmed.

O’LEARY, P. J.

WE CONCUR:

FYBEL, J.

GOETHALS, J.