Filed 5/25/18 P. v. Smith 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

TREVOR DILLON SMITH,

Defendant and Appellant.


G054879

(Super. Ct. No. 16WF2282)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Nicholas S. Thompson, Judge. Affirmed.
Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
* * *

INTRODUCTION
Appellant Trevor Dillon Smith was convicted by a jury of attempted second degree robbery (Pen. Code, §§ 664, 211(a), 212.5(c)). He was sentenced to state prison for the middle term of 2 years after the court dismissed an enhancement allegation alleging he had been on probation at the time of the offense.
Appellant filed an appeal, and we appointed counsel to represent him on that appeal. Counsel filed a brief which fully set out the facts of the case, which we have included below. Counsel did not argue against her client, but advised the court she could find no issues to argue on his behalf. Appellant was invited to express his own objections to the proceedings against him, but had already been paroled by the time the notice reached him. We contacted his attorney and Appellate Defenders Inc., but no one had an address for him.
Under the law, this put the onus on us to review the record and see if we could find any issues that might result in some kind of amelioration of appellant’s lot. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) It should be emphasized that our search was not for issues upon which appellant would prevail, but only issues upon which he might possibly prevail. The result of that search is set out below.
FACTS
Appellate counsel provided an accurate and comprehensive statement of the facts of the case. We are unable to find anything that should be added to those facts and are reluctant to delete anything that might be perceived as favorable to appellant. We therefore reproduce that statement of facts here.
“Case in Chief
“Juan Escalante-Gomez worked as a dishwasher at a sushi restaurant in Costa Mesa. Escalante-Gomez’s primary language was Spanish, speaking a bit of English. On October 1, 2016, around 10:00 p.m., Escalante-Gomez left work. Near the intersection of 19th Street and Anaheim Avenue in Costa Mesa, Escalante-Gomez approached a drunk, homeless woman to ask her if she was ok because it appeared appellant, wearing a hoodie and a jacket, was fondling her. As Escalante-Gomez got closer, appellant jumped toward a chain-linked fence. Three minutes later, after Escalante-Gomez checked on the drunk woman, appellant came back to the intersection.
“Escalante-Gomez had his iPhone 6s Plus, which cost him almost $900, in his hand. Appellant began following Escalante-Gomez and telling him that the phone was appellant’s phone that he had left at the beach. Appellant angrily told Escalante-Gomez that ‘you have my phone’ and ‘give me back my phone.’ In English, Escalante-Gomez responded, ‘it’s mine.’ Appellant tried to grab the phone away from Escalante-Gomez using one hand, but Escalante-Gomez kept walking. Appellant continued to follow Escalante-Gomez for a block pushing Escalante-Gomez in the back with both hands three times and hitting him with a closed fist. Escalante-Gomez walked into the Taco Mesa to get ice for his eye injury while appellant followed him inside. Appellant continued to yell at Escalante-Gomez, but Escalante-Gomez did not understand him and did not respond. Escalante-Gomez did tell the employees that the iPhone was his phone. Appellant refused to leave the restaurant even though others asked him to leave. Escalante-Gomez did not contact the police because he was afraid, but someone inside Taco Mesa called the police. Appellant left Taco Mesa before the police arrived. People at the Taco Mesa asked Escalante-Gomez what happened, but he did not want to talk about it. That night, Escalante-Gomez spoke with the police and identified his attacker. However, Escalante-Gomez did not tell the police anything about the drunk woman because he did not recall the events until a week later.
“On October 1, 2016, Costa Mesa Police Officer Adam Gardner was on patrol. Around midnight, he was dispatched to the Taco Mesa. Officer Gardner saw Escalante-Gomez with some Taco Mesa employees. Escalante-Gomez had a swollen eye and was bleeding from the left side of his face. Officer Gardner interviewed Escalante-Gomez using a Taco Mesa employee, Armando Guerrero, as an interpreter. Officer Gardner read Escalante-Gomez an in-field admonition before conducting the identification, Guerrero translated the admonition into Spanish. Afterwards, Escalante-Gomez identified appellant to Officer Gardner as the man who attacked him.
“Costa Mesa Police Officer Tyrus Ranck was on patrol on October 1, 2016 and responded to a dispatch call to look for a suspect in a robbery. Officer Ranck picked up appellant at a parking lot near 18th Street and Anaheim Avenue in Costa Mesa. Appellant did not tell Officer Ranck that his phone had been stolen.
“Defense Evidence
“Armando Guerrrero was at Taco Mesa on October 1, 2016, when Escalante-Gomez came into the restaurant. Guerrero was in the back with his friends, who were employees at Taco Mesa, and he went to the front and saw Escalante-Gomez and appellant. Appellant was demanding Escalante-Gomez give back his phone and stated four or five times that Escalante-Gomez had taken his phone.
“Jose Quiroz was at the Taco Mesa on October 1, 2016 and saw both Escalante-Gomez and appellant. Escalante-Gomez came into the restaurant bleeding and appellant followed him in while yelling to Escalante-Gomez to give his phone back. Quiroz believed appellant was drunk given how red appellant’s eyes were at the time. Escalante-Gomez said the phone was his and asked for help. When the police arrived, they determined Escalante-Gomez was the phone’s owner.
“Homero Herrera was in his office at the Taco Mesa counting money when Escalante-Gomez came into the restaurant. Herrera contacted the police because he did not want a fight to break out in the store and told the police there was a very drunk man in the restaurant. Guerrero waited with Escalante-Gomez since Herrera had contacted the police.
“Jorge Mejia Lopez was working at Taco Mesa on October 1, 2016. He saw Guerrero pushing appellant from behind towards the outside. Once outside, Mejia saw punches being thrown by both Guerrero and appellant. Mejia could not understand what appellant was saying, but it was something about a telephone.
“Officer Gardner believed appellant was drunk when he questioned him.” (AOB, pp. 4-8.)
DISCUSSION
We have examined the record and found no arguable issue. This is not surprising. In fact, it is what we find in the vast majority of cases in which appellate counsel files a Wende brief. Even the most cynical observer of the legal system would have to recognize that appellate counsel has a financial incentive for finding issues. Leaving aside the commitment and dedication of the appointed attorneys who handle these matters, the simple fact is counsel makes more money if he/she finds an issue that is arguable than if he/she does not. So while it sometimes happens that an appellate court will find issues after appellate counsel has thrown in the towel, it is unusual.
This case is not unusual – at least not in any way that benefits appellant. Appellate counsel considered and rejected the possibility of attacking the sufficiency of the evidence, and we can certainly see why. There really wasn’t much question about what happened. The only real question was why it happened. Considering the presumptions in favor of the judgment required by the law (see People v. Rodriguez (1999) 20 Cal.4th 1), any attack on this basis would have been futile.
The defense offered was intoxication. While appellant did not testify, he called a witness to try to establish that he was not only drunk, but “very drunk.” And the consensus was definitely that he was intoxicated at the time he attacked Escalante-Gomez and tried to take his phone. But the jury was properly instructed on the prosecution’s burden of proof, and the requirement that appellant intended to deprive the victim of his property. They apparently found he was capable of forming such an intent, and we can find no error relating to that issue.
Nor can we find any mistakes in the court’s sentencing. Its conclusion this was a mid-term offense seems reasonable, and appellant certainly has no complaint about its striking of the sentence enhancement allegation for committing the crime while on felony probation. Appellate counsel examined the credits, fines, and fees imposed and could find no basis for an assertion of error there. Nor can we.
In short, we have searched for other issues and we have found none that we think has any chance of success. We believe counsel’s decision to file a Wende brief was well-advised. The judgment is affirmed.




BEDSWORTH, ACTING P. J.

WE CONCUR:



MOORE, J.



ARONSON, J.