P. v. Sandoval

Filed 6/8/07 P. v. Sandoval CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger, Judge. Affirmed.

Lise Breakey, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

A jury convicted defendant of burglary (Pen. Code, 459) and grand theft. (Pen. Code, 487, subd. (a).) In bifurcated proceedings, the trial court found him guilty of petty theft (Pen. Code, 666) and with having suffered 6 prior convictions for which he served prison terms. (Pen. Code, 667.5(b).) He was sentenced to prison for 7 years, four months.^[1]

Facts

Defendant stole a $499 tool set from a department store by placing a bar code over the one affixed to it by the store so that when the code was scanned at the register, a price of $49.99 came up, which defendant paid.

Defendants Appeal

Defendant appealed, and upon his request this court appointed counsel to represent him. We invited defendant to file a personal supplemental brief, which he did. After a thorough review of the record and consideration of counsels and defendants briefs, we concluded there were no arguable issues and affirmed the judgment.

After we issued our opinion, the California Supreme Court decided People v. Kelly (2006) 40 Cal.4th. 106. Therein, our high court held that an appellate opinion issued after a Wende brief has been submitted by counsel and a personal supplemental brief submitted by the defendant should contain matters not included in our original opinion. We therefore include those items in this opinion.

Defendants 37-page brief is, at points, impossible to read and, at others, impossible to understand. As best we can discern, it appears that he asserts four errors: (1) that his trial attorney did not represent him in the manner he thought counsel should have; (2) that he did not personally consent to the pretrial continuances requested by his attorney to accommodate the latters trial schedule; (3) that the trial court improperly denied his post-trial motion to reveal the names of the jurors, and (4) the prosecution witnesses committed misconduct or lied. He also extensively argues that there were deficiencies in the evidence against him.

As to his claim of inadequate representation, we point out that counsel properly makes all tactical decisions, including whether to pursue the issue of witness credibility or misconduct. (People v. Chatman (2006) 38 Cal.4th. 344, 384.) Moreover, where, as here, the record fails to show why counsel acted or failed to act in the instances asserted to be ineffective, unless there simply could be no satisfactory explanation, the claims must be rejected on appeal. (People v. Kraft (2000) 23 Cal.4th. 978, 1068-1069.)

We are unaware of any authority requiring that a defendant personally join in or consent to defense counsels requests for pretrial continuances due to counsels trial schedule. There is no arguable issue that the trial court abused its discretion in refusing to disclose the names of jurors. (See People v. Jones (1998) 17 Cal.4th. 279.) Finally, defense counsel below argued the weakness of the evidence to the jury and his argument was rejected. Defendant fails to advance an arguable issue that the evidence of his guilt was unworthy of belief. (See People v. Young (2005) 34 Cal.4th. 1149.)

Our independent review of the record discloses no other basis for reversal.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

McKINSTER

J.

MILLER

J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^[1] When the trial court sentenced defendant, it did not state orally for which conviction it was imposing sentence and for which it was staying sentence pursuant to Penal Code section 654. The court minutes and abstract of judgment, neither of which are signed or necessarily reviewed by the trial court, state that the court imposed sentence for the petty theft and stayed sentence for the burglary and the grand theft. However, in our experience, court minutes and abstracts of judgment are often incorrect (and require correcting by this court) Therefore, we hope that this is not the case here. In any event, and because the oral pronouncements of the trial court, as reported in the Reporters Transcript, take precedence over contradictory statements in the Clerks Transcript, the trial court would do well in the future to make clear on the record for which conviction(s) sentence is being imposed.