People v. Mendoza CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD245314
- Trial judge
- Louis R. Hanoian
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Judith D. McConnell (author), Alex C. McDonald, Patricia D. Benke
Analysis
The trial court convicted Mendoza of receiving stolen property, sentenced him to four years and eight months based on prior strike and prison commitment enhancements, and declined his invitation to dismiss the strikes. The Court of Appeal affirmed the judgment, finding no reasonably arguable issues after an independent review of the record.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Conviction for receiving stolen property (Pen. Code, § 496, subd. (a))“Regardless of the length of time Mendoza possessed the backpack, there was no dispute it and the items in it were stolen and there was sufficient evidence Mendoza knew they were stolen.” | substantial evidence | not reached | unsure The court affirmed the judgment without explicitly analyzing the sufficiency of the evidence for the conviction, relying instead on the general conclusion that no reasonably arguable issues existed. While the court cited People v. Boinus regarding the elements of the crime, it did not apply the standard of review to the specific facts to determine if the evidence was sufficient, leaving the analysis implicit in the affirmance. |
Jury instruction CALCRIM No. 3516 regarding dual conviction (theft vs. receiving stolen property)“The court did not err in giving the CALCRIM No. 3516 instruction. (People v. Ceja, supra, p. 10.)” | de novo | not reached | unsure The court stated the instruction was not error and cited People v. Ceja. However, it did not explain why the instruction was correct or how Ceja applies to the specific facts of this case, merely asserting the conclusion. The reasoning is thin, relying on a single citation without elaboration. |
Denial of invitation to dismiss prior strike convictions for sentencing purposes“The court's decision to decline Mendoza's invitation to dismiss his prior strike convictions for sentencing purposes was not "so irrational or arbitrary that no reasonable person could agree with it."” | abuse of discretion | not reached | agree with court The court applied the standard from People v. Carmony, stating the decision was not irrational or arbitrary. It did not provide specific reasons why the trial court's decision was reasonable, but the application of the correct legal standard and the affirmance suggest the court found the trial court's exercise of discretion within bounds. |
Prejudice from juror seeing defendant in shackles“The record does not show Mendoza was prejudiced because a juror briefly saw him in waist restraints and handcuffs. (People v. Tuilaepa (1992) 4 Cal.4th 569, 584-585.)” | abuse of discretion | not reached | agree with court The court found no prejudice, citing People v. Tuilaepa. It noted the encounter was brief and the jury already knew Mendoza was in custody. This reasoning is consistent with the law that shackles are not per se prejudicial and require a showing of actual prejudice, which the court found lacking. |
Ineffective assistance of counsel for failing to have defendant testify“The ineffective assistance of counsel claim cannot be resolved on the present record. (People v. Kelly (2006) 40 Cal.4th 106, 121, fn. 4, 126; People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.)” | de novo | not reached | agree with court The court declined to resolve the claim, citing People v. Kelly and People v. Mendoza Tello, which hold that such claims are often better resolved on collateral attack because the record may be incomplete. This is a standard and correct procedural approach for this type of claim on direct appeal. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires independent review of the record by appellate counsel in cases where counsel files a Wende brief.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to file a brief identifying potentially arguable issues when no meritorious issues are found.
- relied: People v. Ceja (2010) 49 Cal.4th 1 — Holds that the prosecution is not precluded from alternatively charging theft and receiving stolen property, and that the CALCRIM No. 3516 instruction is correct.
- relied: People v. Boinus (1957) 153 Cal.App.2d 618 — Defines the elements of receiving stolen property, including knowledge that the property was stolen.
- relied: People v. Tuilaepa (1992) 4 Cal.4th 569 — Holds that the use of shackles is not per se prejudicial and requires a showing of actual prejudice.
- relied: People v. Carmony (2004) 33 Cal.4th 367 — Establishes the standard for reviewing a trial court's decision to decline an invitation to dismiss prior strike convictions, which is whether the decision was so irrational or arbitrary that no reasonable person could agree with it.
- relied: People v. Hernandez (2008) 45 Cal.4th 295 — Holds that a detention and arrest are not constitutionally unreasonable if supported by probable cause.
- relied: People v. Young (2005) 34 Cal.4th 1149 — Holds that resolution of conflicts and inconsistencies in witness testimony is the exclusive province of the jury.
- relied: People v. Rivas (2013) 214 Cal.App.4th 1410 — Holds that a defendant is not prejudiced by jury confusion regarding instructions unless the record shows such confusion.
- relied: People v. Kelly (2006) 40 Cal.4th 106 — Holds that ineffective assistance of counsel claims are often better resolved on collateral attack because the record on direct appeal may be incomplete.
- relied: People v. Mendoza Tello (1997) 15 Cal.4th 264 — Holds that ineffective assistance of counsel claims are often better resolved on collateral attack.
The appellate opinion: sound — The opinion is a Wende/Anders brief where the court finds no reasonably arguable issues. It addresses each issue raised by counsel and Mendoza, citing relevant authorities for each. The reasoning is concise but sufficient for the purpose of a Wende review, which is to identify any potential errors. The court correctly applies the standards of review for each issue and cites appropriate authorities.
A San Diego jury convicted Alfredo Mendoza of receiving stolen property (Pen. Code, § 496, subd. (a)), hung on an alternative grand theft count, and the trial court denied his request to strike two prior strike convictions and sentenced him to four years eight months. On appeal under People v. Wende, appointed counsel raised no arguable issues, the Court of Appeal considered seven Anders issues and six questions raised by Mendoza himself, found none reasonably arguable, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Permitting the prosecution to charge theft and receiving stolen property of the same property in the alternative“The prosecution was not precluded from alternatively charging theft and receiving stolen property.” | de novo | correct | agree with court Section 496(a) bars dual conviction, not alternative charging; the jury convicted only on receiving and hung on theft, so no dual-conviction problem arose. Ceja supports the court's conclusion. |
Instructing the jury with CALCRIM No. 3516 to decide the theft count before the receiving count“The court did not err in giving the CALCRIM No. 3516 instruction.” | de novo | correct | agree with court The instruction tracks the statutory prohibition on convicting of both theft and receiving the same property, and the court's response to the jury note permitting a verdict on receiving without a verdict on theft was consistent with that rule. |
Sufficiency of the evidence supporting the receiving stolen property conviction, including the length of possession“there was no dispute it and the items in it were stolen and there was sufficient evidence Mendoza knew they were stolen.” | substantial evidence | correct | agree with court Mendoza was stopped shortly after a witness saw him trying to break into a car, admitted checking door handles, and carried the victim's backpack and contents six blocks from her home; knowledge of stolen character may be inferred from these circumstances. The duration of possession is not an element. |
No prejudice from a juror briefly seeing Mendoza in waist chains and handcuffs outside the courtroom“The record does not show Mendoza was prejudiced because a juror briefly saw him in waist restraints and handcuffs.” | unclear | correct | agree with court A brief, inadvertent out-of-court observation of a defendant in restraints is generally not prejudicial under Tuilaepa, especially where the jury already knew the defendant was in custody from the girlfriend's testimony and defense counsel tactically declined to question the juror. |
Denial of Mendoza's request to dismiss his prior strike convictions for sentencing purposes“The court's decision to decline Mendoza's invitation to dismiss his prior strike convictions for sentencing purposes was not "so irrational or arbitrary that no reasonable person could agree with it."” | abuse of discretion | correct | agree with court Carmony sets the deferential standard the court applied; with two strikes and two prior prison terms, nothing in the recited record suggests Mendoza falls outside the spirit of the Three Strikes law. The opinion gives little detail, but the conclusion is defensible. |
Legality of Mendoza's detention and arrest“The record does not show Mendoza's detention and arrest were constitutionally unreasonable.” | mixed | correct | agree with court The officer stopped Mendoza because he matched a contemporaneous 911 description of a man trying to break into a car, which supplies reasonable suspicion; the search was consensual and the stolen items found furnished probable cause. |
Jury's resolution of witness Rains's credibility“Resolution of conflicts and inconsistencies in witness testimony is the exclusive province of the jury.” | substantial evidence | correct | agree with court Appellate courts do not reweigh credibility; Young correctly states the rule. |
Whether the jury's possible confusion about the instructions prejudiced Mendoza“The record does not show Mendoza was prejudiced by any confusion the jury may have had about any of the jury instructions.” | unclear | correct | agree with court The jury's note was answered correctly and the verdict on receiving without a theft verdict was permissible; nothing in the record shows a misunderstanding that affected the outcome. |
Ineffective assistance claim based on trial counsel's failure to have Mendoza testify“The ineffective assistance of counsel claim cannot be resolved on the present record.” | unclear | not reached | agree with court The record is silent on why Mendoza did not testify, so under Mendoza Tello the claim is properly left to habeas corpus. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Appellate court must independently review the record when appointed counsel files a brief raising no arguable issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel may identify possible but non-arguable issues to aid the court's independent review.
- relied: People v. Ceja (2010) 49 Cal.4th 1 — Theft and receiving the same stolen property may be charged in the alternative; a defendant may not be convicted of both, and the jury should be so instructed.
- relied: People v. Boinus (1957) 153 Cal.App.2d 618 — Knowledge that property was stolen may be inferred from circumstantial evidence surrounding possession.
- relied: People v. Tuilaepa (1992) 4 Cal.4th 569 — A juror's brief, inadvertent observation of a defendant in restraints outside the courtroom is not prejudicial.
- relied: People v. Carmony (2004) 33 Cal.4th 367 — Denial of a motion to strike a prior strike is reviewed for abuse of discretion and reversed only if so irrational or arbitrary that no reasonable person could agree.
- relied: People v. Hernandez (2008) 45 Cal.4th 295 — A detention is lawful when supported by reasonable suspicion of criminal activity based on specific articulable facts.
- relied: People v. Young (2005) 34 Cal.4th 1149 — Appellate courts do not reevaluate witness credibility; conflicts in testimony are for the jury.
- relied: People v. Rivas (2013) 214 Cal.App.4th 1410 — Instructional ambiguity does not warrant reversal absent a showing of prejudice.
- relied: People v. Kelly (2006) 40 Cal.4th 106 — Describes the scope of Wende review and the court's obligations when a defendant files a supplemental brief.
- relied: People v. Mendoza Tello (1997) 15 Cal.4th 264 — Ineffective assistance claims that depend on matters outside the record are more appropriately raised by habeas corpus.
The appellate opinion: sound — The court addressed each Anders issue and each question raised by Mendoza with an on-point authority, and the recited facts support its conclusions on sufficiency, the detention, the instruction, and the Romero denial. Its treatment is summary and the Romero discussion is conclusory, but in a Wende appeal with no arguable issues that brevity is customary and the result is sound.
Opinion
Filed 7/11/14 P. v. Mendoza CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064586
Plaintiff and Respondent, v. (Super. Ct. No. SCD245314)
ALFREDO MENDOZA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Louis R.
Hanoian, Judge. Affirmed.
Kleven McGann Law and Sarah Kleven McGann, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent. INTRODUCTION The prosecution charged Alfredo Mendoza with one count of receiving stolen property (Pen. Code, § 496, subd. (a))1 and one count of grand theft of personal property (§ 487, subd. (a).) The jury could not reach a verdict on the grand theft charge, but found Mendoza guilty of the receiving stolen property charge. Mendoza also admitted having two prior strike convictions (§§ 667, subd. (b)-(i), 1170.12) and two prior prison commitment convictions (§ 667.5, subd. (b)).
After it declined Mendoza's invitation to dismiss the prior strike convictions for sentencing purposes, the court sentenced him to an aggregate term of four years and eight months in prison. The term consisted of sixteen months for the receiving stolen property conviction, doubled because of the prior strike convictions, plus one year for each of the prior prison commitment convictions.2 Mendoza appeals. His appointed appellate counsel filed a brief requesting we independently review the record for error. (See People v. Wende (1979) 25 Cal.3d 436, 441-442.) In addition, we granted Mendoza permission to file a brief on his own behalf.
He submitted a brief posing six questions for this court's consideration.
Having reviewed the record and considered the questions posed by Mendoza, we conclude there are no reasonably arguable appellate issues and affirm the judgment.
1 Further statutory references are also to the Penal Code unless otherwise stated.
2 The court also sentenced him to a consecutive term of 16 months in prison for a separate case, in which he pleaded guilty to possessing a dirk or dagger. The separate case is not at issue in this appeal. 2 BACKGROUND Trial Evidence Prosecution Evidence On Christmas night, a biologist parked her car in her driveway and neglected to lock the door. She left several items in her car, including a checkbook, some CDs, and a backpack containing binoculars, a portable weather station, and a birding guide.
The morning after Christmas Day, John Rains saw a man trying to break into a car. The man stood on the car's running board and looked into the car. He then tried unsuccessfully to break the front window with his fist.
Rains called 911 and reported the man's activity. He described the man as a young, light-skinned African-American man. The man wore black pants and a gray hooded sweatshirt. He had a gray, black and red backpack on his back. He also had a black BMX bicycle. At trial, Rains identified Mendoza as the man.
A police officer responding to Rains' 911 call encountered Mendoza and stopped him because he matched the description Rains provided. Mendoza told the officer his ex- girlfriend was cheating on him and he was looking for her vehicle in the area. When the officer informed Mendoza that someone matching Mendoza's description was seen checking the door handles of cars, Mendoza said he might have checked a few door handles while looking for his ex-girlfriend's car.
The officer performed a consensual search of Mendoza. Mendoza did not have any burglary tools or other tools on him; however, he had a red, gray and black backpack containing binoculars, a portable weather station, a birding guide, the biologist's 3 checkbook and other items. The biologist, who lived approximately six blocks away, later identified the backpack and the items in it as hers. She did not give Mendoza or anyone else permission to take anything from her car.
Defense Evidence Mendoza's ex-girlfriend testified she argued with Mendoza on Christmas Day and he left their home. She then went to a nearby bar, where she met another man whom she invited home with her to smoke methamphetamine. She did not remember the man's name or anything else about him except that he was Hispanic and carried a backpack with him. When she got home, she packed up Mendoza's belongings into a regular backpack, a rolling backpack, and a laundry bag she had in the home. With the other man's assistance, she placed Mendoza's belongings by the door. At some point Mendoza returned home. She told him she did not want him there any longer and she threw his belongings at him while he remained at the door. She did not remember whether she also threw the other man's backpack to Mendoza; however, the other man came to her home the next day asking for his backpack.
Mendoza's girlfriend never told anyone about the potential backpack mix-up until Mendoza's case was sent out for trial. Mendoza's girlfriend had two prior convictions for petty thefts. Mendoza was with her when both thefts occurred and each time she told police he had no idea she had stolen anything.
4 Trial Procedures Juror Pre-Deliberation Encounter with Mendoza After the close of evidence and before instruction and argument, one of the jurors saw a bailiff escorting Mendoza. Mendoza was in waist chains and handcuffs at the time.
Defense counsel opted not to question the juror or otherwise call attention to the matter because the encounter was brief and the jury already knew Mendoza was in custody because Mendoza's girlfriend had testified she had visited Mendoza in jail while he awaited trial.
Jury Instruction on Prohibition Against Dual Conviction Among the court's instructions to the jury was CALCRIM No. 3516, which informed the jury: "The defendant is charged in Count 2 with theft and in Count 1 with receiving stolen property. You must first decide whether the defendant is guilty of theft.
If you find the defendant guilty of theft, you must return the verdict form for receiving stolen property unsigned. If you find the defendant not guilty of theft[,] you must then decide whether the defendant is guilty of receiving stolen property."
Jury Deliberations During its deliberations, the jury sent a note to the court asking, "If we find the defendant guilty of receiving stolen property, [d]o we need to give a verdict on theft? [¶]
We cannot come to a decision on theft?" The court responded, "You may return a verdict for Count 1, receiving stolen property, without reaching a verdict on Count 2[,] theft."
5 DISCUSSION
Appointed appellate counsel filed a brief summarizing the facts and proceedings below. Counsel presented no argument for reversal and instead requested we review the record for error as mandated by People v. Wende, supra, 25 Cal.3d at pages 441-442. To aid our review, counsel identified seven possible, but not reasonably arguable issues (see Anders v. California (1967) 386 U.S. 738, 744) (Anders issues)). These issues were: (1)
Was it error for the state to pursue two alternative charges at trial? (2) Was there sufficient evidence to convict Mendoza of receiving stolen property? (3) Was Mendoza deprived of effective assistance of counsel because his trial counsel failed to have him testify on his own behalf? (4) Did the court err by instructing the jury under CALCRIM No. 3516 to consider the theft charge before considering the receipt of stolen property charge? (5) Did Mendoza possess the stolen property for a sufficient amount of time to be found guilty of receiving stolen property? (6) Was Mendoza prejudiced by the fact a juror saw him in shackles during the trial? (7) Did the court abuse its discretion by declining Mendoza's invitation to dismiss Mendoza's prior strike convictions for sentencing purposes?
Mendoza filed a brief on his own behalf posing six questions, many of which overlap the Anders issues identify by appellate counsel. Mendoza's questions were: (1)
Was it legal to detain and arrest him? (2) Was there sufficient evidence to convict him of receiving stolen property? (3) Did Rains mislead police and the jury about a man breaking into vehicles? (4) Was it legal for the prosecutor to charge him with both receiving and stealing the same property? (5) Did the jury fully understand the jury 6 instructions? (6) Did his trial counsel provide ineffective assistance by failing to have him testify on his own behalf?
We have considered the Anders issues and the questions posed by counsel and conclude none of them is reasonably arguable. The prosecution was not precluded from alternatively charging theft and receiving stolen property. (See People v. Ceja (2010) 49 Cal.4th 1, 10.) The court did not err in giving the CALCRIM No. 3516 instruction.
(People v. Ceja, supra, p. 10.) Regardless of the length of time Mendoza possessed the backpack, there was no dispute it and the items in it were stolen and there was sufficient evidence Mendoza knew they were stolen. (People v. Boinus (1957) 153 Cal.App.2d 618, 622.) The record does not show Mendoza was prejudiced because a juror briefly saw him in waist restraints and handcuffs. (People v. Tuilaepa (1992) 4 Cal.4th 569, 584-585.) The court's decision to decline Mendoza's invitation to dismiss his prior strike convictions for sentencing purposes was not "so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.) The record does not show Mendoza's detention and arrest were constitutionally unreasonable.
(People v. Hernandez (2008) 45 Cal.4th 295, 299.) We do not reevaluate a witness's credibility. Resolution of conflicts and inconsistencies in witness testimony is the exclusive province of the jury. (People v. Young (2005) 34 Cal.4th 1149, 1181.) The record does not show Mendoza was prejudiced by any confusion the jury may have had about any of the jury instructions. (People v. Rivas (2013) 214 Cal.App.4th 1410, 1429.)
The ineffective assistance of counsel claim cannot be resolved on the present record.
7 (People v. Kelly (2006) 40 Cal.4th 106, 121, fn. 4, 126; People v. Mendoza Tello (1997)
15 Cal.4th 264, 267.)
As requested by counsel, we independently reviewed the record and we also did not identify any reasonably arguable issues. Mendoza has been competently represented by counsel in this appeal.
DISPOSITION
The judgment is affirmed.
MCCONNELL, P. J.
WE CONCUR:
BENKE, J.
MCDONALD, J.
Cites, in this corpus
- People v. Rivas No. H036974 · 2013-03-29
- People v. Ceja S157932 · 2010-05-17
- People v. Hernandez S150038 · 2008-12-11
- People v. Kelly S133114 · 2006-11-27
- People v. Young S018909 · 2005-01-31
- People v. Carmony No. S115090 · 2004-07-08
- People v. Mendoza Tello S055184 · 1997-04-17
- People v. Tuilaepa S004786. Crim. 26420 · 1992-12-28
- People v. Wende Crim. 20851 · 1979-10-12
- People v. Boinus Crim. 5916 · 1957-09-06