People v. Ruiz CA2/5

Filed 11/6/13 P. v. Ruiz CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE
THE PEOPLE, B243545
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA078254)
v.
RANDAL A. RUIZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of the County of Los Angeles,
Dorothy L. Shubin, Judge. Affirmed.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance by Plaintiff and Respondent.
INTRODUCTION
A jury found defendant and appellant Randal Ruiz (defendant) guilty of first
degree burglary and second degree burglary, and the trial court sentenced him to
concurrent 35 years-to-life sentences on each count. On appeal, his appointed counsel
filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) requesting that
this court independently review the entire record to determine if there are any issues,
which if resolved in defendant’s favor, would require reversal or modification of the
judgment. Accordingly, we notified defendant that he could brief any grounds of appeal,
contentions, or arguments he wanted us to consider. As discussed below,
notwithstanding two extensions of time within which to file a brief, defendant failed to
timely submit a brief prior to the cause being submitted for decision.
Based on our independent review of the entire record, we conclude that there are
no arguable issues on appeal and, for that reason, affirm the judgment of conviction.
FACTUAL BACKGROUND
On October 23, 2009, Stephen Biskup was staying temporarily in a guesthouse
located behind the main house at 1453 Bellford Street, Pasadena. There was a storage
shed behind the guesthouse. That morning, between 7:00 and 8:00 a.m., Biskup “looked
out on the porch to the backyard” and noticed that the gate to the yard, which had been
closed the night before, was “slightly open.” Biskup approached the gate, looked through
it, and noticed a man with a backpack on a bicycle about to leave. Biskup did not know
the man, who said “Hi” and then “took off on the bike.” A Sheriff’s deputy arrived later
that morning and interviewed Biskup.
In October 2009, Mary Ann Shemdin owned a residential property located at 1453
and 1455 Bellford Street in Pasadena. There were two homes on the lot, a two car garage
with a carport, and a storage shed at the back of the deep lot. Shemdin lived in one of the
homes and a male lived in the second one.
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On the morning of October 23, 2009, the man who lived in the second house
contacted Shemdin about something that had occurred in the storage shed at the back of
the lot. Following her discussion with the man, Shemdin went to inspect the storage
shed. She noticed that the door to the shed, which was always locked, was open, as was a
window. When she entered the shed, she observed that it had been “ransacked.” The
shed had been “very full” with furniture, Christmas decorations, files, and boxes
containing her daughter’s possessions. Her daughter, Marie St. Claire, had moved out of
state and left some of her possessions behind in the shed. Shemdin could see that “things
[in the shed] had been gone through,” but she did not have a written inventory of her
daughter’s possessions. Several items in the shed had been moved or altered.
After inspecting the shed, Shemdin called the Sheriff’s Department, and a
Sheriff’s deputy responded to take a police report. As the deputy completed his report, a
City of Pasadena police officer arrived and asked Shemdin if she knew a Marie St. Claire.
When Shemdin told the officer that St. Claire was her daughter, he asked her if she
recognized a computer.
A few days later, Shemdin went to the Pasadena Police Department and was
shown certain items, including a computer and jewelry, among others. Of the items she
was shown, Shemdin recognized the computer as her daughter’s. Shemdin had last seen
her daughter’s computer, which was not operating properly, in the storage shed with her
daughter’s other possessions.
On October 23, 2009, Angele Ajamian resided at 1447 Bellford Avenue,
Pasadena. Her neighbor, Mary Ann Shemdin, lived next door. That morning between
7:00 and 8:00 a.m., Ajamian was in her family room watching the news. From her
window, she saw a man with a backpack going toward the back of the property where a
rental unit was located. The man left a bicycle and stood behind a big tree. Ajamian
opened the door and asked, “‘Can I help you?’” The man replied, “‘I’m looking for
Hector.’” Ajamian said, “‘There is no Hector here,’” and the man “took his bike and
left.” A few days later, police officers showed Ajamian a photo lineup and she identified
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defendant’s photograph as the man she saw in her backyard. Ajamian also identified
defendant in court as the man she saw that morning.
On the morning of October 23, 2009, Frank Greer was home alone working in his
office at his residence located at 2305 Woodlyn Road, Pasadena. His office was adjacent
to the laundry room in his garage and connected to the laundry room by a door. The
laundry room could also be accessed through the garage by another door.
At approximately 9:30 a.m., Greer heard a noise in the laundry room and looked
up, but did not see anything. When he heard another noise from the laundry room, he
looked up again and saw the silhouette of a man through the sheer white curtain on the
door to the laundry room. Greer, who was expecting his wife, not a man, saw the male
silhouette touch the door knob and heard the knob “kind of turn a little bit.” Greer then
said, “‘Hello,’” which caused the man to “sort of [freeze]” and then leave.
Greer was “taken aback” and decided to investigate “what was going on.” He
went through the laundry room into the garage and outside to the driveway through the
open front garage door. There he observed defendant, wearing a bandana and a
backpack, trying to free a bicycle that was entangled in some mesh netting in a tomato
garden. After defendant freed the bicycle and moved it into the driveway, he said, “‘I
was just looking for Hector.’” Defendant then mounted his bicycle and rode away.
Greer called 911 and provided a description of defendant. He informed the 911
operator that he was scheduled to leave for the airport and was told that “they would send
someone right over.” When a police officer responded, he told Greer that the police had
found someone who matched the description Greer had provided to the 911 operator.
The officer asked Greer to accompany him to a location where they were detaining the
man matching the description. The officer transported Greer to the location where Greer
was able to observe the man being detained wearing a bandana and identify him as the
man he had seen at his house. Greer also identified defendant in court as the man with
the bicycle that he saw in his driveway.
On October 23, 2009, City of Pasadena Police Officer Roxanne Bevel was
working patrol with her partner Office Burchett. Shortly after 9:30 a.m., she received a
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radio broadcast regarding a burglary. While the officers were en route to the scene of the
burglary, they observed a male on a bicycle “who had a light gray covering over his head,
[that] later was identified as a long-sleeved shirt.” The man generally fit the description
of the burglary suspect that the officers were provided in the dispatch broadcast. Officer
Bevel identified defendant in court as the man they observed that morning.
As the officers approached defendant, Officer Bevel noticed that he had a
backpack on his back and was carrying a green bag. The officers detained defendant and
recovered a “Radio Shack golf scope” and screwdriver from his rear pockets and black
and purple gloves from his front pants pocket. Inside defendant’s backpack, Officer
Burchett noticed “various tools, [a] screwdriver, allen wrenches, . . . a couple of watches,
a recorder, . . . and . . . miscellaneous other items.” Inside the green bag, Officer Burchett
recovered a blue and silver laptop and other items. Red bolt cutters were also recovered
from the backpack. In addition, the officers recovered jewelry from defendant’s person,
including six rings, hoop earrings, three bracelets, a pendant, and a chain, as well as a
bicycle repair kit. The officers arrested and booked defendant.
On October 23, 2009, City of Pasadena Police Officer Christopher Burchett was
working patrol with his partner, Officer Bevel. The officers contacted defendant that
morning and eventually arrested him. Officer Burchett assisted Officer Bevel in
searching defendant and inventorying all the items that the officers recovered from him.
One of those items was a laptop computer. Officer Burchett powered on the computer
and searched through it looking for a name. He found a resume with a name, Marie St.
Claire, and an address, 1455 Bellford Avenue, Pasadena. Based on that information,
Officer Burchett sent Officer Lopez to the address in an effort to locate the owner.
City of Pasadena Detective Richard Pippin investigated the burglary of the shed at
1453 Bellford Avenue, Pasadena. As part of the investigation, he spoke to Shemdin and
showed her items that were booked into evidence as a result of defendant’s arrest.
Shemdin identified the computer as belonging to her daughter, but none of the other
items. Detective Pippin also showed Ajamian a six-pack photo lineup. Ajamian
identified the photograph of defendant in that lineup.
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B. Defense Case
Defendant called Mitchell Eisen as an expert to testify about various issues with
the reliability of eyewitness identifications.
PROCEDURAL BACKGROUND
In a second amended information, the District Attorney charged defendant in
count 1 with first degree burglary in violation of Penal Code section 4591 and in count 2
with second degree burglary in violation of section 459. The District Attorney alleged
that defendant had suffered seven prior violent or serious felony convictions within the
meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b)
through (i). The District Attorney also alleged that defendant suffered two convictions
for which a prison term was served within the meaning of section 667.5, subdivision (b).
The District Attorney further alleged that defendant had suffered two prior serious felony
convictions within the meaning of section 667, subdivision (a)(1).
Following trial, the jury found defendant guilty on both counts. In a subsequent
court trial on the prior conviction allegations, the trial court found all of the prior
conviction allegations true.
The trial court sentenced defendant on count 1 to a term of 25 years to life
pursuant to the true findings on the prior strike convictions, plus a consecutive ten-year
term pursuant to section 667, subdivision (a)(1), for an aggregate term on count 1 of 35
years to life. The trial court sentenced defendant on count 2 to the same 35 years-to-life
sentence as imposed on count 1 to run concurrent to the sentence on count 1. The trial
court also imposed, but stayed, additional two-year terms on each count pursuant to
section 667.5, subdivision (b).
1
All further statutory citations are to the Penal Code unless otherwise indicated.
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DISCUSSION
In response to the brief submitted by defendant’s counsel under Wende, supra, 25
Cal.3d 436, we independently examined the entire record to determine if there were any
arguable issues on appeal. Based on that independent review, we have determined there
are no arguable issues on appeal. We are therefore satisfied that defendant’s appointed
counsel has fully satisfied his responsibilities under Wende, supra, 25 Cal.3d 436.
As noted above, on May 6, 2013, we granted defendant permission to file within
30 days, a letter brief raising any issues, arguments, or contentions that he wished to raise
in support of his appeal. At defendant’s request, we granted him two extensions of time,
totaling an additional 45 days, within which to file a letter brief. Notwithstanding that
defendant’s last extension of time expired on July 15, 2013, defendant did not submit a
brief before that date. Instead, well after the cause was submitted for decision on August
5, 2013, he attempted to file without permission on September 3 and 23, 2013, letter
briefs comprised of over 100 handwritten pages.
Because defendant’s letter briefs were submitted six to nine weeks late without
permission and well after the cause was submitted, we are justified in not considering
them. Even if we had considered the multitude of contentions raised by those letter
briefs, we would not reverse defendant’s judgment of conviction.
As to the many claims of ineffective assistance of counsel asserted throughout
those briefs, such claims are generally not cognizable on a direct appeal, but rather are
more appropriately raised on habeas corpus. “‘To establish a violation of the
constitutional right to effective assistance of counsel, a defendant must show both that his
counsel’s performance was deficient when measured against the standard of a reasonably
competent attorney and that counsel’s deficient performance resulted in prejudice to
defendant in the sense that it “so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result.”’ (People v.
Kipp (1998) 18 Cal.4th 349, 366 [75 Cal.Rptr.2d 716, 956 P.2d 1169], quoting Strickland
v. Washington [(1984)] 466 U.S. [668,] 686.) Preliminarily, we note that rarely will an
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appellate record establish ineffective assistance of counsel. (People v. Mendoza Tello
(1997) 15 Cal.4th 264, 267-268 [62 Cal.Rptr.2d 437, 933 P.2d 1134].)” (People v.
Thompson (2010) 49 Cal.4th 79, 122.) “We have repeatedly stressed ‘that “[if] the record
on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,]
. . . unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation,” the claim on appeal must be rejected.’
(People v. Wilson (1992) 3 Cal.4th 926, 936 [13 Cal.Rptr.2d 259, 838 P.2d 1212] quoting
People v. Pope (1979) 23 Cal.3d 412, 426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th
1].) A claim of ineffective assistance in such a case is more appropriately decided in a
habeas corpus proceeding. (People v. Wilson, supra, at p. 936; People v. Pope, supra, at
p. 426.)” (People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
As for the various other contentions involving pretrial suppression motions,
discovery issues, evidentiary rulings, jury instructions, and various other claimed legal
errors, to the extent those contentions were not forfeited, defendant did not and cannot
demonstrate that he was prejudiced by such claims of error. The evidence of defendant’s
guilt was consistent and came from a variety of credible sources, including two
eyewitness identifications by Greer and Ajamian, and the incriminating items recovered
from defendant’s person, including St. Claire’s computer which had last been seen in the
storage shed, the jewelry, and the burglary tools such as gloves, bolt cutters,
screwdrivers, and wrenches. Given the strength of the evidence of defendant’s guilt, the
claimed errors could not have been prejudicial. “[E]ven if the court’s ruling were
deemed erroneous, it would not be prejudicial. Considering the consistent evidence of
defendant’s guilt from a variety of sources, the outcome of the trial was not affected by
the court’s ruling, either as a matter of reasonable probability under state law (People v.
Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]), or under the ‘harmless beyond a
reasonable doubt’ standard for federal constitutional error (Chapman v. California (1967)
386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824].).” (People v. Hartsch (2010) 49 Cal.4th
472, 497-498.) Based on our independent review of the record, even assuming one or
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more of the claimed errors occurred, under any applicable standard, defendant was not
prejudiced.
As to the various sentencing errors that defendant raises, including his claims of
evidentiary error in the court trial on the prior conviction allegations, we have, as noted
above, independently reviewed the record, including the record as it relates to the court
trial on the prior convictions and defendant’s sentence, and have determined that there
were no errors concerning the trial court’s admission of the documentary evidence in
support of the prior conviction allegations2 and no sentencing errors.3 Accordingly, we
affirm the judgment of conviction from which defendant appeals.
DISPOSITION
The judgment of conviction is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MOSK, J.
We concur:
TURNER, P. J.
KRIEGLER, J.
2
See, e.g., Penal Code section 969b; People v. Miles (2008) 43 Cal.4th 1074, 1082.
3
See, e.g., People v. Superior Court (Romero) (1996) 13 Cal.4th 497 [trial court’s
discretion to dismiss strike limited].
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