Filed 10/3/17 P. v. Pedroza CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Debra C. Carrillo, Judge. Affirmed.

Amy V. Parekh, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

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FACTS

Appellant Felipe Uriostegui Pedroza was convicted by a jury of second degree auto burglary and attempted second degree robbery growing out of two crimes committed during a 15-minute low intensity “crime spree.” The trial judge reduced the

auto burglary to a misdemeanor and Pedroza was placed on formal probation for three years. He was not incarcerated, but was ordered to pay fines, fees, and restitution. He was also ordered to attend 180 Spanish-language self-help meetings and keep a daily journal of his life, to be submitted to the court.

This lenient sentence seems appropriate based upon the circumstances of the crime. Parath Chadha heard his car alarm go off and went outside to investigate. He saw Pedroza stagger down the street and converse with the owner of a nearby white van for about ten seconds. When the van left, Pedroza checked his car and found his phone accessories and cables were missing.

The owner of the white van said a drunk came up to his car, spoke loudly and incoherently, and took a couple of punches at him. He drove away. He could not identify the drunk but Chadha identified Pedroza and witnessed the encounter at the van. (An attempted carjacking charge based on this encounter was later dismissed by the prosecution on the basis the evidence of intent to steal the van was insufficient.)

A short time later, Pedroza had a conversation with Laura Chamberlain, who was out walking her dog. Pedroza introduced himself to Ms. Chamberlain as “Pedro,” admired and petted the dog, and the exchange ended. Pedroza started to walk away but then returned and told her to, “Give me your money.” She replied, “Really?” And he said, “Yes, I’m sorry, but give me your fucking money.” He was in the process of getting the money when police – called by Chadha – showed up.

Pedroza’s defense was that he had been drinking all evening and his intoxication caused him to do things he would not normally do. He admitted burglarizing Chadha’s car, but denied attempting to rob Ms. Chamberlain. He said he merely asked for her money because he was hungry. When asked why he asked for money for food when he had $340 in his pocket, he said he was so drunk he forgot he had his wallet full of cash. He said he didn’t reach for her purse, but rather held out his hand to receive money he thought she was going to give him. He denied using the word “fucking” and the police reported Ms. Chamberlain had not included that word in her initial report.

DISCUSSION

Pedroza filed an appeal, and we appointed counsel to represent him on that appeal. Counsel filed a brief which fully set forth the facts of the case. Counsel did not argue against her client, but advised the court she could find no issues to argue on appellant’s behalf.[1] Appellant was invited to express his own objections to the proceedings against him, but did not. 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.) 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.

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. The simple matter 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. The case against him was pretty much overwhelming, but that is the only thing remarkable about it. Appellate counsel considered and rejected the possibility of attacking the sufficiency of the evidence, and we can certainly see why. The evidence was not only considerably greater than the legal standard requires, it was more or less irrefutable.

We have looked at the evidence concerning appellant’s mental state – everyone agrees he was intoxicated – but that is not, in and of itself, a defense, and the jury having impliedly rejected Pedroza’s description of the facts, there is no basis for an appeal bound up in that circumstance. There were no controversial searches or questionable means used in obtaining statements. The instructions appear appropriate, and we cannot quarrel with the judge’s sentencing, which in fact seems a thoughtful and appropriate resolution of the matter.[2]

Appellate counsel considered questioning the denial of a defense motion to dismiss the robbery charge at the close of trial (Pen. Code, § 1118.1), but the evidence to make the robbery was sufficiently established at that point. Ms. Chamberlain said she was taking money from her purse to give to appellant when the police arrived, and given her version of the facts, there was no reason for her to do so other than force or fear.

Nor can we impugn trial counsel’s performance. Concession of the car burglary was a solid tactic, and given the cards he had been dealt, there just wasn’t any good way to play the hand. In short, we have searched for other issues and we have found none that we think has any chance of success. We believe appellate 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.