P. v. Smith

Filed 7/12/07 P. v. Smith CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Steven C. Suzukawa, Judge. Affirmed.

California Appellate Project, Jonathan B. Steiner and Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

STATEMENT OF PROCEDURAL AND HISTORICAL FACTS

The Los Angeles District Attorney charged Ledale A. Smith (appellant) in an amended information with second degree burglary of a Los Angeles County Metropolitan Transportation Authority (MTA) bus (count 1, Pen. Code 459) and with petty theft with a prior (count 2, 666).[1] The information also alleged that appellant had previously been convicted of a serious or violent felony within the meaning of the Three Strikes Law ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and that he had suffered a prior conviction pursuant to section 667.5, subdivision (b).

Prior to the start of trial, appellant waived his constitutional rights and admitted the prior conviction enhancements. The jury found appellant guilty of both counts on May 10, 2006. On May 24, 2006, appellant was sentenced to five years in state prison. Appellant filed a timely notice of appeal.

On January 21, 2006, MTA bus operator Richard Morton (Morton) parked his bus in an official bus rest area on Vermont in the City of Los Angeles. Prior to taking a break, Morton secured the bus, verified there were no passengers in the bus and locked the door. Morton left his personal belongings on the bus, a stack of day passes sold to the public and a Nextel cell phone. When Morton returned form his break, he unlocked the bus door and entered the bus. He immediately noticed that the day passes and the cell phone were missing. Two witnesses standing by the rest area advised Morton that they had seen someone unlock the bus door and go inside. One witnesses provided Morton with a description and he then called the police.

Sheriffs Deputy Bardon (Bardon) responded to the call and relying on the suspect description and the last known location, spotted appellant at the Rosa Parks Metro station, approximately three miles from the bus rest area. When Bardon approached appellant, he saw that appellant had a stack of MTA day passes in his right hand and a cell phone. A key identical to a key used to operate MTA busses was also found on appellant. Appellant was detained and brought to the police station where Morton confirmed that the cell phone and day passes found on appellant were those stolen from his bus.

Appellant testified at his trial. He testified that while waiting to catch the metro at the Vermont station, he saw a black male riding a bicycle away from the direction of the Rosa Parks station. Appellant testified that the person on the bicycle was wearing a sports jacket and wearing a baseball cap, which matched the description of the suspect. Appellant said the man stopped by some bushes across the street, reached into the bushes with his arm and sped away. Appellant then looked into the bushes and found a key, a cell phone and a booklet of bus passes. After finding the items, appellant boarded the train and got off at Imperial station where he was planning to turn the items over to the police.

DISCUSSION

We appointed counsel to represent appellant on appeal. After examination of the record, On February 7, 2007, counsel filed an Opening Brief in which no issues were raised. On February 8, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider.

Appellant has filed two documents with the court. The first, filed on May 8, 2007, is entitled Motion of Notice of Appeal. In this six-page document, appellant relates some facts, but primarily questions the testimony of the police department witnesses against him. The second document, filed on May 29, 2007, is entitled Supplemental Brief. This document contends that the trial court erred in certain respects: 1) it was error to refuse his request for the clothing he wore on the day of the crime be submitted as a court exhibit; 2) the police officers conspired against him and put this case on him when he failed to help them solve the case of the strong arm robberies on the metro blue line. In the document, appellant also give his version of the events surrounding his arrest to support his argument that everything was made up.

We have examined the record in this case and were unable to locate a request that the clothing appellant was wearing at the time of his arrest be brought to court. Documentary evidence in the record indicates that the appellants clothing from the day of his arrest was not held as evidence, but held to be returned to him at the time he is released. Thus, there would have been no clothing to present to the jury had a request been made. The record indicates no clothing was admitted as evidence during the trial and there was no request for any clothing to be brought to court. There is no merit to this contention of appellant.

There was however, considerable discussion of the clothing worn by the perpetrator of this crime. Appellant testified regarding the description of the clothing he was wearing. The police witnesses testified to their recollection of the clothing worn by appellant. A videotape of the crime was received into evidence; showing the actual clothing of the perpetrator. There was opportunity to argue to the jury about any discrepancies between the clothing worn by the perpetrator in the video tape and the clothing worn by appellant and/or described by the officers or in the booking documents.

Appellants remaining arguments represent his dissatisfaction with the result of the trial and raise no recognizable claim of error. We have examined the entire record and are satisfied that appellants attorney has fully complied with the responsibilities of counsel and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284; People v. Wende (1979) 25 Cal.3d 436, 441.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P.J.

We concur:

RUBIN, J. FLIER, J.

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[1] All undesignated statutory references are to the Penal Code.