Filed 9/12/18 P. v. Pack CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Scott T. Millington, Judge. Affirmed.

Elana Goldstein, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

____________________________

Defendant Steven Thomas Pack (aka Steven Pack Pack and Steve A. Pack) appeals from a judgment of conviction. Defendant’s appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, identifying no issues and requesting that this court review the record and determine whether any arguable issue exists on appeal. We have reviewed the record, conclude the record reveals no arguable issue on appeal, and thus affirm.

FACTUAL BACKGROUND

On or about September 6 and 7, 2016, defendant took property belonging to his neighbors, mostly from their cars. Without permission, he entered M.S.’s car and took her laptop computer, iPhone, and paperwork. Police recovered her laptop computer. At the time defendant entered her car, the vehicle was parked in M.S.’s carport, which was attached to her house. Shortly after M.S. noticed the items were missing, M.S.’s fiancé, C.H., saw defendant driving on the street near their home and noticed a lawnmower “hanging out” of defendant’s vehicle.

A.H. kept an insurance card in the glove compartment of her car, which she parked in her garage. The garage was attached to her house. Defendant’s mother found A.H.’s insurance card at her house and gave the card to Deputy Sheriff Dwayne Javier. When A.H.’s son learned of the missing insurance card, he checked A.H.’s car and noticed that it had been ransacked.

On September 6 or 7, without permission, defendant took J.T.’s purse from her car, which was parked on her driveway. She had money, gift cards, jewelry, and checks in her purse. Defendant also took J.T.’s lawnmower and gardening tools. J.T. went to defendant’s parents’ home and retrieved her lawnmower, driver’s license, gift cards, and credit cards.

On September 7, 2016, L.T. noticed his spare tire was in his driveway. Without L.T.’s permission, defendant entered L.T.’s car and took L.T.’s watch, tax returns, camera, and a check. L.T. recovered some of these items in the garage at defendant’s parents’ house. L.T. also found a check payable to J.T. underneath a couch in defendant’s parents’ garage.

On September 7, 2016, M.L. noticed items missing from his car. Detective Jimmy Duckworth recovered M.L.’s property at defendant’s parents’ house.

On September 7, 2016, C.F. noticed that items were missing from her vehicle.

On September 8, 2016, Detective Duckworth went to defendant’s parents’ home. Duckworth learned that defendant lived in the garage. Once Duckworth and deputy sheriffs obtained a search warrant for the garage, they knocked on the door. They asked defendant to exit numerous times. He refused for a substantial period of time, exiting 30 to 60 minutes after the requests. Once defendant exited the garage, officers placed him in a patrol vehicle. Defendant hit the rear window of the patrol vehicle with his head and broke that window. Detective Duckworth recovered property belonging to several of the victims inside the garage where defendant lived.

Defendant’s mother testified that she lived with her husband, daughter, and granddaughter. In September 2016, defendant lived in the garage. Defendant’s mother testified that she returned property to J.T. and L.T. Defendant’s mother also gave deputy sheriffs other property that belonged to the victims.

PROCEDURAL BACKGROUND

In November 2016, prior to trial, defense counsel declared a doubt as to defendant’s competency. The trial court suspended proceedings and ordered defendant evaluated. At the next court proceeding, defense counsel submitted on the reports of the experts and advised the trial court that defendant appeared competent. The trial court found defendant competent and reinstated proceedings.

Jurors found defendant guilty of two counts of first degree burglary; grand theft personal property; two counts of petty theft; vandalism of a patrol vehicle window, and delaying or obstructing a peace officer. Jurors acquitted defendant of one count of petty theft. Defendant waived jury trial on the prior prison allegations under Penal Code section 667.5, subdivision (b) and admitted two offenses under that statute.

Before sentencing, the trial court conducted a Marsden hearing outside the presence of the prosecutor. (People v. Marsden (1970) 2 Cal.3d 118 (Marsden). Defendant indicated that he had asked his attorney for discovery to understand the case against him, but had not received any. Defendant stated that he wanted his attorney to introduce a defense that his friend lived in his garage and was responsible for the crimes. Defendant’s counsel reported that defendant’s mother had said that defendant was the only person who lived in the garage. Counsel indicated that she discussed possible defenses with defendant. The trial court found that defense counsel properly represented defendant and there was no breakdown in the relationship such that it would be impossible for defense counsel to continue representing defendant. The trial court denied defendant’s Marsden motion.

Prior to sentencing, defense counsel declared a doubt as to defendant’s competency, and the trial court suspended proceedings in order to have him evaluated. After an evaluation, defendant was again found competent. The trial court sentenced defendant to an aggregate term of five years, consisting of four years in state prison and one year in county jail.

DISCUSSION

Defendant appealed from the judgment. We appointed counsel to represent defendant. After examining the record, counsel filed a Wende brief raising no issues on appeal and requesting that we independently review the record. (People v. Wende, supra, 25 Cal.3d 436.)

This court advised defendant of the opportunity to file a supplemental brief, and he filed a one-page supplemental brief. Defendant stated that (1) “everyone” on the jury had been a victim of burglary and “a few” were acquainted with police officers; (2) an alibi witness (his father) and an “I.D. expert” witness regarding “why my picture was not selected out of a six pack” should have been called; (3) he should have been sent to “patton mental health” before being declared competent; (4) evidence concerning an iPhone pinging was false; (5) defendant was denied “a discovery,” which he does not identify; and (6) his counsel did not seek discovery of law enforcement personnel records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531.

We conclude that defendant has not demonstrated reversible error. The fact that jurors had been victims of burglaries or were acquainted with police officers does not demonstrate, by itself, that the trial court should have excused those jurors for cause. To excuse a juror for cause, the juror’s inability “to perform his duty ‘must appear in the record as a demonstrable reality.’ ” (People v. Halsey (1993) 12 Cal.App.4th 885, 892.) Defendant identifies no juror’s inability to perform his or her duty.

Defendant’s belief that his counsel should have called certain witnesses is based on matter outside the record and cannot be considered on appeal. (See In re Carpenter (1995) 9 Cal.4th 634, 646 [“appellate jurisdiction is limited to the four corners of the record on appeal”].) The trial court ordered defendant to be evaluated and found defendant competent prior to trial and prior to sentencing. Defendant demonstrates no error in these findings or in the trial court’s proceeding with the trial and sentencing.

Defendant fails to identify the evidence he challenges related to the iPhone. Even if the iPhone did not reveal its exact location, there was no dispute as to the residence address of defendant’s parents. There was no dispute that the victims’ property was at that address. Defendant has thus not demonstrated prejudice from the admission of purportedly false pinging evidence.

Defendant also does not identify the discovery he failed to receive. Defendant demonstrates neither error nor prejudice based on his asserted failure to receive “a discovery.”

Finally, Pitchess v. Superior Court, supra, 11 Cal.3d 531 does not assist defendant. “Our Supreme Court’s decision in Pitchess ‘established that a criminal defendant could “compel discovery” of certain relevant information in the personnel files of police officers by making “general allegations which establish some cause for discovery” of that information and by showing how it would support a defense to the charge against him.’ ” (Serrano v. Superior Court (2017) 16 Cal.App.5th 759, 767.) To initiate discovery, the defendant must file a motion and show good cause for the discovery. (Id. at pp. 767-768.) Defendant has not identified good cause for discovery under Pitchess. A fortiori, defendant has not demonstrated error in his counsel’s failing to move for such discovery.

We have examined the entire record and are satisfied that defendant’s appellate attorney has complied with her responsibilities and that no arguable issue exists. (People v. Wende, supra, 25 Cal.3d at pp. 438-441; see also Smith v. Robbins (2000) 528 U.S. 259, 278-284.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

CHANEY, Acting P. J.

CURREY, J.*