P. v. Ruiz

 

 

 

 

 

 

 

 

 

 

Filed 11/6/13  P. v. Ruiz CA2/5

> 

> 

> 

> 

> 

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

SECOND
APPELLATE DISTRICT

 

DIVISION
FIVE

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   RANDAL A. RUIZ,               Defendant and Appellant.

B243545         (Los Angeles County       Super. Ct. No. GA078254)

 

            APPEAL from
a judgment of the Superior Court of the County
of Los
Angeles, Dorothy L. Shubin, Judge.  Affirmed.

            David
McNeil Morse, under appointment by the Court of Appeal, for Defendant and
Appellant.

            No
appearance by Plaintiff and Respondent.

>

INTRODUCTION

 

            A jury
found defendant and appellant Randal Ruiz (defendant) guilty of first degree
burglary and second degree burglary,
and the trial court sentenced him to concurrent 35 years-to-life sentences on
each count.  On appeal, his appointed
counsel filed a brief pursuant to People
v. Wende (1979) 25 Cal.3d 436 (Wende)
requesting that this court independently review the entire record to determine
if there are any issues, which if resolved in defendant’s favor, would require
reversal or modification of the judgment. 
Accordingly, we notified defendant that he could brief any grounds of
appeal, contentions, or arguments he wanted us to consider.  As discussed below, notwithstanding two
extensions of time within which to file a brief, defendant failed to timely
submit a brief prior to the cause being submitted for decision.

Based on our href="http://www.mcmillanlaw.com/">independent review of the entire record,
we conclude that there are no arguable issues on appeal and, for that reason,
affirm the judgment of conviction.

 

FACTUAL BACKGROUND

 

            On October
23, 2009, Stephen Biskup was staying temporarily in a guesthouse located behind
the main house at 1453 Bellford Street, Pasadena.  There was a storage shed behind the
guesthouse.  That morning, between 7:00
and 8:00 a.m., Biskup “looked out on the porch to the backyard” and noticed
that the gate to the yard, which had been closed the night before, was
“slightly open.”  Biskup approached the
gate, looked through it, and noticed a man with a backpack on a bicycle about
to leave.  Biskup did not know the man,
who said “Hi” and then “took off on the bike.” 
A Sheriff’s deputy arrived later that morning and interviewed Biskup.

In October 2009, Mary Ann Shemdin
owned a residential property located at 1453 and 1455 Bellford Street in
Pasadena.  There were two homes on the
lot, a two car garage with a carport, and a storage shed at the back of the deep
lot.  Shemdin lived in one of the homes
and a male lived in the second one.

            On the morning
of October 23, 2009, the man who lived in the second house contacted Shemdin
about something that had occurred in the storage shed at the back of the
lot.  Following her discussion with the
man, Shemdin went to inspect the storage shed. 
She noticed that the door to the shed, which was always locked, was
open, as was a window.  When she entered
the shed, she observed that it had been “ransacked.”  The shed had been “very full” with furniture,
Christmas decorations, files, and boxes containing her daughter’s
possessions.  Her daughter, Marie St.
Claire, had moved out of state and left some of her possessions behind in the
shed.  Shemdin could see that “things [in
the shed] had been gone through,” but she did not have a written inventory of
her daughter’s possessions.  Several items
in the shed had been moved or altered. 

            After
inspecting the shed, Shemdin called the Sheriff’s Department, and a Sheriff’s
deputy responded to take a police report. 
As the deputy completed his report, a City of Pasadena police officer
arrived and asked Shemdin if she knew a Marie St. Claire.  When Shemdin told the officer that St. Claire
was her daughter, he asked her if she recognized a computer.

A few days later, Shemdin went to
the Pasadena Police Department and was shown certain items, including a
computer and jewelry, among others.  Of
the items she was shown, Shemdin recognized the computer as her
daughter’s.  Shemdin had last seen her
daughter’s computer, which was not operating properly, in the storage shed with
her daughter’s other possessions.

On October 23, 2009, Angele Ajamian
resided at 1447 Bellford Avenue, Pasadena. 
Her neighbor, Mary Ann Shemdin, lived next door.  That morning between 7:00 and 8:00 a.m.,
Ajamian was in her family room watching the news.  From her window, she saw a man with a backpack
going toward the back of the property where a rental unit was located.  The man left a bicycle and stood behind a big
tree.  Ajamian opened the door and asked,
“‘Can I help you?’”  The man replied,
“‘I’m looking for Hector.’”  Ajamian
said, “‘There is no Hector here,’” and the man “took his bike and left.”  A few days later, police officers showed Ajamian
a photo lineup and she identified defendant’s photograph as the man she saw in
her backyard.  Ajamian also identified
defendant in court as the man she saw that morning.

On the morning of October 23, 2009,
Frank Greer was home alone working in his office at his residence located at
2305 Woodlyn Road, Pasadena.  His office
was adjacent to the laundry room in his garage and connected to the laundry
room by a door.  The laundry room could
also be accessed through the garage by another door.

            At
approximately 9:30 a.m., Greer heard a noise in the laundry room and looked up,
but did not see anything.  When he heard
another noise from the laundry room, he looked up again and saw the silhouette
of a man through the sheer white curtain on the door to the laundry room.  Greer, who was expecting his wife, not a man,
saw the male silhouette touch the door knob and heard the knob “kind of turn a
little bit.”  Greer then said, “‘Hello,’”
which caused the man to “sort of [freeze]” and then leave.

            Greer was
“taken aback” and decided to investigate “what was going on.”  He went through the laundry room into the
garage and outside to the driveway through the open front garage door.  There he observed defendant, wearing a
bandana and a backpack, trying to free a bicycle that was entangled in some
mesh netting in a tomato garden.  After
defendant freed the bicycle and moved it into the driveway, he said, “‘I was
just looking for Hector.’”  Defendant
then mounted his bicycle and rode away.

            Greer
called 911 and provided a description of defendant.  He informed the 911 operator that he was
scheduled to leave for the airport and was told that “they would send someone
right over.”  When a police officer
responded, he told Greer that the police had found someone who matched the
description Greer had provided to the 911 operator.  The officer asked Greer to accompany him to a
location where they were detaining the man matching the description.  The officer transported Greer to the location
where Greer was able to observe the man being detained wearing a bandana and
identify him as the man he had seen at his house.  Greer also identified defendant in court as
the man with the bicycle that he saw in his driveway.

            On October
23, 2009, City of Pasadena Police Officer Roxanne Bevel was working patrol with
her partner Office Burchett.  Shortly
after 9:30 a.m., she received a radio broadcast regarding a burglary.  While the officers were en route to the scene
of the burglary, they observed a male on a bicycle “who had a light gray
covering over his head, [that] later was identified as a long-sleeved shirt.”  The man generally fit the description of the
burglary suspect that the officers were provided in the dispatch
broadcast.  Officer Bevel identified
defendant in court as the man they observed that morning.

            As the
officers approached defendant, Officer Bevel noticed that he had a backpack on
his back and was carrying a green bag. 
The officers detained defendant and recovered a “Radio Shack golf scope”
and screwdriver from his rear pockets and black and purple gloves from his
front pants pocket.  Inside defendant’s
backpack, Officer Burchett noticed “various tools, [a] screwdriver, allen
wrenches, . . . a couple of watches, a recorder, . . . and . . . miscellaneous
other items.”  Inside the green bag,
Officer Burchett recovered a blue and silver laptop and other items.  Red bolt cutters were also recovered from the
backpack.  In addition, the officers
recovered jewelry from defendant’s person, including six rings, hoop earrings,
three bracelets, a pendant, and a chain, as well as a bicycle repair kit.  The officers arrested and booked defendant.

            On October
23, 2009, City of Pasadena Police Officer Christopher Burchett was working
patrol with his partner, Officer Bevel. 
The officers contacted defendant that morning and eventually arrested
him.  Officer Burchett assisted Officer
Bevel in searching defendant and inventorying all the items that the officers
recovered from him.  One of those items
was a laptop computer.  Officer Burchett powered
on the computer and searched through it looking for a name.  He found a resume with a name, Marie St.
Claire, and an address, 1455 Bellford Avenue, Pasadena.  Based on that information, Officer Burchett
sent Officer Lopez to the address in an effort to locate the owner.

            City of
Pasadena Detective Richard Pippin investigated the burglary of the shed at 1453
Bellford Avenue, Pasadena.  As part of
the investigation, he spoke to Shemdin and showed her items that were booked
into evidence as a result of defendant’s arrest.  Shemdin identified the computer as belonging
to her daughter, but none of the other items.  Detective Pippin also showed Ajamian a
six-pack photo lineup.  Ajamian
identified the photograph of defendant in that lineup.

            >B.        Defense
Case

            Defendant
called Mitchell Eisen as an expert to testify about various issues with the
reliability of eyewitness identifications.

 

PROCEDURAL BACKGROUND

 

            In a second
amended information, the District Attorney charged defendant in count 1 with
first degree burglary in violation of Penal Code section 459href="#_ftn1" name="_ftnref1" title="">[1]> and in count 2 with second degree
burglary in violation of section 459. 
The District Attorney alleged that defendant had suffered seven prior
violent or serious felony convictions within the meaning of sections 1170.12,
subdivisions (a) through (d) and 667, subdivisions (b) through (i).  The District Attorney also alleged that
defendant suffered two convictions for which a prison term was served within
the meaning of section 667.5, subdivision (b).  The District Attorney further alleged that
defendant had suffered two prior serious felony convictions within the meaning
of section 667, subdivision (a)(1).

            Following
trial, the jury found defendant guilty on both counts.  In a subsequent court trial on the prior
conviction allegations, the trial court found all of the prior conviction
allegations true.

            The trial
court sentenced defendant on count 1 to a term of 25 years to life pursuant to
the true findings on the prior strike convictions, plus a consecutive ten-year
term pursuant to section 667, subdivision (a)(1), for an aggregate term on
count 1 of 35 years to life.  The trial
court sentenced defendant on count 2 to the same 35 years-to-life sentence as
imposed on count 1 to run concurrent to the sentence on count 1.  The trial court also imposed, but stayed,
additional two-year terms on each count pursuant to section 667.5, subdivision
(b).

 

 

DISCUSSION

 

            In response
to the brief submitted by defendant’s counsel under Wende, supra, 25 Cal.3d 436, we independently examined the entire
record to determine if there were any arguable issues on appeal.  Based on that independent review, we have
determined there are no arguable issues on appeal.  We are therefore satisfied that defendant’s
appointed counsel has fully satisfied his responsibilities under >Wende, supra, 25 Cal.3d 436. 

            As noted
above, on May 6, 2013, we granted defendant permission to file within 30 days,
a letter brief raising any issues, arguments, or contentions that he wished to
raise in support of his appeal.  At
defendant’s request, we granted him two extensions of time, totaling an
additional 45 days, within which to file a letter brief.  Notwithstanding that defendant’s last
extension of time expired on July 15, 2013, defendant did not submit a brief
before that date.  Instead, well after the
cause was submitted for decision on August 5, 2013, he attempted to file
without permission on September 3 and 23, 2013, letter briefs comprised of over
100 handwritten pages.

            Because
defendant’s letter briefs were submitted six to nine weeks late without
permission and well after the cause was submitted, we are justified in not
considering them.  Even if we had considered
the multitude of contentions raised by those letter briefs, we would not
reverse defendant’s judgment of conviction. 


As to the many claims of ineffective
assistance of counsel asserted throughout those briefs, such claims are
generally not cognizable on a direct appeal, but rather are more appropriately
raised on habeas corpus.  “‘To establish
a violation of the constitutional right to effective assistance of counsel, a
defendant must show both that his counsel’s performance was deficient when
measured against the standard of a reasonably
competent attorney and that counsel’s deficient performance resulted in prejudice to defendant in the sense
that it “so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.”’  (People v. Kipp (1998) 18 Cal.4th 349,
366 [75 Cal.Rptr.2d 716, 956 P.2d 1169], quoting Strickland v. Washington [(1984)] 466 U.S. [668,] 686.)  Preliminarily, we note that rarely will an
appellate record establish ineffective
assistance of counsel.  (People v.
Mendoza Tello (1997) 15 Cal.4th 264, 267-268 [62 Cal.Rptr.2d 437, 933 P.2d
1134].)”  (People v. Thompson (2010) 49 Cal.4th 79, 122.)  “We have repeatedly stressed ‘that “[if] the
record on appeal sheds no light on why counsel acted or failed to act in the
manner challenged[,] . . . unless counsel was asked for an explanation and
failed to provide one, or unless there simply could be no satisfactory explanation,”
the claim on appeal must be rejected.’  (People
v. Wilson (1992) 3 Cal.4th 926, 936 [13 Cal.Rptr.2d 259, 838 P.2d 1212]
quoting People v. Pope (1979) 23 Cal.3d 412, 426 [152 Cal.Rptr. 732, 590
P.2d 859, 2 A.L.R.4th 1].)  A claim of
ineffective assistance in such a case is more
appropriately decided in a habeas corpus proceeding.  (People v. Wilson, supra, at p.
936; People v. Pope, supra, at p. 426.)”  (People
v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.) 

As for the various other
contentions involving pretrial suppression motions, discovery issues,
evidentiary rulings, jury instructions, and various other claimed legal errors,
to the extent those contentions were not forfeited, defendant did not and cannot
demonstrate that he was prejudiced by such claims of error.  The evidence of defendant’s guilt was
consistent and came from a variety of credible sources, including two
eyewitness identifications by Greer and Ajamian, and the incriminating items
recovered from defendant’s person, including St. Claire’s computer which had
last been seen in the storage shed, the jewelry, and the burglary tools such as
gloves, bolt cutters, screwdrivers, and wrenches.  Given the strength of the evidence of
defendant’s guilt, the claimed errors could not have been prejudicial.  “[E]ven if the court’s ruling were deemed
erroneous, it would not be prejudicial.  Considering the consistent evidence of
defendant’s guilt from a variety of sources, the outcome of  the trial was not affected by the court’s
ruling, either as a matter of reasonable probability under state law (People
v. Watson (1956) 46 Cal.2d
818, 836 [299 P.2d 243]), or under the ‘harmless
beyond a reasonable doubt’ standard
for federal constitutional error (Chapman
v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824].).”  (People
v. Hartsch (2010) 49 Cal.4th 472, 497-498.) 
Based on our independent review of the record, even assuming one or more
of the claimed errors occurred, under any applicable standard, defendant was
not prejudiced.

As to the various sentencing errors
that defendant raises, including his claims of evidentiary error in the court
trial on the prior conviction allegations, we have, as noted above,
independently reviewed the record, including the record as it relates to the
court trial on the prior convictions and defendant’s sentence, and have
determined that there were no errors concerning the trial court’s admission of
the documentary evidence in support of the prior conviction allegationshref="#_ftn2" name="_ftnref2" title="">[2]> and no sentencing errors.href="#_ftn3" name="_ftnref3" title="">[3]  Accordingly, we affirm the judgment of
conviction from which defendant appeals.

 

DISPOSITION

 

            The
judgment of conviction is affirmed.

            NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS

 

 

 

 

                                                                                    MOSK,
J.

 

 

We concur:

 

 

 

                        TURNER,
P. J.

 

 

 

                        KRIEGLER,
J.