Filed 10/2/13 P. v. Lam CA3
                                                 NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for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
                                           THIRD APPELLATE DISTRICT
                                                            (Sacramento)
                                                                    ----




THE PEOPLE,

                     Plaintiff and Respondent,                                                            C071842

          v.                                                                                (Super. Ct. No. 12F00229)

TIMOTHY LAM,

                     Defendant and Appellant.

          Appointed counsel for defendant Timothy Lam asked this court to review the
record to determine whether there are any arguable issues on appeal. (People v. Wende
(1979) 25 Cal.3d 436 (Wende).) Defendant filed a supplemental brief1 contending (1) his
trial counsel rendered ineffective assistance during plea negotiations, (2) his appellate
counsel rendered ineffective assistance, (3) the prosecutor suborned perjury and knew a



1         Defendant’s request to dismiss his appointed appellate counsel was denied.


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witness was going to lie, and (4) the prosecutor vouched for the credibility of a witness
the prosecutor knew to be untruthful and failed to correct the witness’s statement. We
conclude none of defendant’s contentions has merit.
                                          FACTS
                                Prosecution Case-in-Chief
        On December 28, 2011, Jason Wheeler was staying at the apartment of his friend
Steve Buckley. During the stay, Buckley borrowed Wheeler’s white pickup truck to run
an errand.
        At 5:00 a.m. the next day, Wheeler began getting ready for work. Around
5:30 a.m., two friends of Buckley -- defendant and a woman named Melia -- arrived at
the apartment. Melia proceeded to Buckley’s bedroom and closed the door while
defendant and Wheeler remained in the living room. After a few minutes, defendant left
to go to a store.
        While defendant was away, Wheeler asked Buckley for the keys to Wheeler’s
truck. Buckley said they were in the front room. Wheeler searched the front room and
kitchen but did not find the keys. Defendant returned during the search and denied
having the keys.
        Wheeler heard the clinking of his keys and saw Melia shove an object down the
front of her pants. Believing Buckley and Melia were playing a joke on him, Wheeler
proceeded to the bathroom and started cleaning his teeth. While in the bathroom,
Wheeler heard the sound of his truck moving and ran outside. Wheeler testified that the
sun “wasn’t out yet,” but “[i]t was coming up.” The day was clear and the skies were
blue.
        In the available light, Wheeler saw defendant backing the truck out of the
apartment complex. Wheeler also saw Melia, who was sitting in her own car on the street




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outside the complex. After defendant observed Wheeler outside the apartment, defendant
and Melia drove away. Wheeler reentered the apartment and, at 7:01 a.m., he called 911.
He told the 911 operator his truck had been stolen five minutes earlier.
       Six days after the theft, police found Wheeler’s truck. Wheeler’s watches,
jewelry, compact discs, and photographs were missing from the truck. Because the key
also was missing, a locksmith re-keyed the ignition switch.
                                          Defense
       The defense rested without presenting evidence or testimony.
                                   Verdict and Sentence
       A jury found defendant guilty of driving or taking a vehicle. (Veh. Code, § 10851,
subd. (a).) The trial court found he had a prior serious felony conviction (Pen. Code,
§§ 667, subds. (b)-(i), 1170.12)2 and a prior vehicle theft conviction (§ 666.5, subd. (a)).
The court also found defendant had served four prior prison terms. (§ 667.5, subd. (b).)
       Defendant was sentenced to prison for 12 years, consisting of twice the upper term
of four years (§ 666.5, subd. (a)) plus four years for the prior prison terms. He was
awarded 197 days’ custody credit and 196 days’ conduct credit, ordered to make
restitution to the victim, and ordered to pay a $200 restitution fine (§ 1202.4), a $200
restitution fine suspended unless parole is revoked (§ 1202.45), a $40 court operations fee
(§ 1465.8, subd. (a)(1)), and a $30 court facilities assessment (Gov. Code, § 70373).




2      Undesignated statutory references are to the Penal Code.


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                                        DISCUSSION
                                               I
                          Ineffective Assistance of Trial Counsel
       Defendant contends his trial counsel rendered ineffective assistance when he
advised defendant to reject multiple negotiated plea agreements. The claim is not
properly before us.
                                         Plea Offers
       The minutes for March 29, 2012, reflect a plea offer of 32 months, consisting of
twice the low term of 16 months. There is no oral record of this offer.
       On June 14, 2012, the prosecutor placed a second plea offer on the record as
follows: “I would obviously entertain any counteroffers from [defendant], but we’ve sort
of been through this already. It would be two years on the [Vehicle Code section] 10851,
doubled to four by virtue of the strike prior. I’d dump all of his one-year priors.”
       The trial court responded: “All right. The little I know about the case, that sounds
like a fair offer. But then, again, I don’t know all the facts. So it’s hard for me to make a
final judgment on that. [¶] Based upon what I know and what I’ve heard happened,
some other things related to this defendant, sounds like a fair offer to me, but obviously
[defendant] knows he has a right to a trial, jury trial.”
       Defendant did not accept either plea offer and proceeded to jury trial.
                                           Analysis
       Defendant argues he had pled guilty many times in the past and would have done
so in this case had his appointed trial counsel rendered proper advice. Specifically,
defendant claims he had not known Wheeler had identified him as the thief, a fact that
“all by itself almost guarantees a conviction at trial.” In defendant’s view, appointed trial




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counsel should have advised him that “his ability to prevail despite being innocent was
very low.”
       “ ‘ “[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.’ [Citations.] A claim of ineffective assistance in such a case is
more appropriately decided in a habeas corpus proceeding. [Citations.]” (People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266-267 (Mendoza Tello).)
       The appellate record does not indicate what advice appointed trial counsel
rendered with respect to the plea offers or what factors may have influenced trial
counsel’s advice and recommendation. Nor does the record show there could be no
satisfactory reason for trial counsel to have advised defendant to take this case to trial.
Thus, we must reject defendant’s claim on appeal. (Mendoza Tello, supra, 15 Cal.4th at
pp. 266-267.)
       In accordance with Mendoza Tello, defendant raised his claim of ineffective
assistance of counsel in a petition for habeas corpus. (In re Timothy Lam on Habeas
Corpus, Case No. C073659.) At his request, we take judicial notice of the petition he
filed in that case. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).) This court denied
defendant’s petition on May 9, 2013.
                                              II
                       Ineffective Assistance of Appellate Counsel
       Defendant contends his appointed appellate counsel rendered deficient
performance in that she “filed a Wende brief when there are several meritorious grounds
in [defendant’s] underlying case.” He claims appellate counsel’s deficient performance
was prejudicial because, on his own, he has “found at least four issues and articulates




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them here in the headings and in the text with reference to the constitutional violations of
established federal law by the United States Supreme Court.” Defendant’s claim has no
merit.
         “ ‘ “[I]n order to demonstrate ineffective assistance of counsel, a defendant must
first show counsel’s performance was ‘deficient’ because his [or her] ‘representation fell
below an objective standard of reasonableness . . . under prevailing professional norms.’
[Citation.] Second, he [or she] must also show prejudice flowing from counsel’s
performance or lack thereof. [Citation.] Prejudice is shown when there is a ‘reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’ [Citations.]” [Citation.]’ ” (People v. Avena
(1996) 13 Cal.4th 394, 418; fn. omitted.)
         As we explain in parts I, III, and IV of this opinion, the issues defendant identified
in his supplemental brief have no merit. Thus, appointed appellate counsel was not
deficient for having failed to raise the issues.
                                               III
                                         Subornation
         Defendant contends the prosecutor “suborned” perjury and knew victim Wheeler
was going to lie about facts related to the 911 call. Defendant further contends the trial
court abused its discretion when it allowed the 911 call to be admitted into evidence.
Neither contention has merit.
         The premise of defendant’s argument is that “Ninety-one minutes elapsed between
when [the victim]’s truck is stolen and [when] he calls 9-1-1.” From that premise,
defendant argues Wheeler was not telling the truth “on the phone during the 9-1-1 call
which occurred at 7:01 a.m.,” when Wheeler claimed the truck had been stolen just five




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minutes earlier. Defendant claims the prosecutor knew, contrary to his motion in limine,
the 911 call was not a spontaneous utterance for purposes of the hearsay rule (Evid.
Code, § 1240) and was “in fact false evidence.” Defendant further claims the trial court
abused its discretion when it allowed the 911 call to be admitted into evidence “without
any explanation for the 91-minute gap between the theft and the phone call.”
       Defendant’s arguments fail because his sole citation to the record (in his statement
of facts) does not establish the existence of a 91-minute gap. The cited material indicates
Wheeler was uncertain of the time defendant and Melia arrived at Buckley’s residence
(sometime between 5:00 a.m. and 5:45 a.m.). Wheeler explained that, at that time, “it
was dark out [and] the sun had not come out yet.” But the record does not establish how
much time elapsed between the 5:00 a.m. to 5:45 a.m. arrival of defendant and Melia and
the theft of Wheeler’s truck. Thus, the record does not suggest Wheeler was lying when
he testified that, at 7:01 a.m., the sun “wasn’t out yet” but “was coming up.” Nor does
the record suggest Wheeler was lying when he told the 911 operator his truck had been
stolen five minutes earlier.
       Finally, although defendant’s supplemental brief states at several places that the
prosecutor “suborned” perjury, the brief cites no evidence and makes no argument that
the prosecutor engaged in subornation, i.e., offered a bribe or other inducement for the
purpose of obtaining perjury. Any such claim is forfeited. (People v. Harper (2000)
82 Cal.App.4th 1413, 1419, fn. 4.)
                                            IV
                                  Vouching for Witness
       Defendant contends the prosecutor vouched for the credibility of Wheeler, a
witness he knew was untruthful. Defendant further contends the prosecutor failed to




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correct Wheeler’s false statements about the sun coming up and about defendant and
Melia arriving at 5:00 a.m.
       In part III, ante, we rejected defendant’s claims that Wheeler’s statements were
false. This leaves the issue of whether the prosecutor vouched for Wheeler. We
conclude he did not.
       In his closing summation, the prosecutor discussed Wheeler as follows:
       “That guy is not coming in here and making up lies. What reason would he have
to do that? Ask yourself that. Maybe the guy isn’t the perfect witness. He certainly isn’t
the perfect human being, certainly has his own way of dealing with things that probably
you wouldn’t want to employ yourself in a similar situation. Blame him for that. Go
ahead. But don’t fall for these particular tricks that are being employed right now saying
he’s a liar about it.
       “It’s obvious that he had his truck stolen. He called and reported it stolen. And he
gave great details about how it was stolen by this guy right here.
       “[Defense counsel] also talked about how Detective Reese was unwilling to talk to
[the victim] about the inconsistencies. I do remember [defense counsel] asking
[Detective] Reese: Did you confront [the victim] about these inconsistencies?
       “Well, the one thing [defense counsel] didn’t tell you was what the detective’s
response was. ‘I didn’t see any.’ That was his testimony. ‘I didn’t see any
inconsistencies with what he was telling me from day one to day two.”
       Defendant’s claim of vouching was forfeited by his failure to object. (People v.
Williams (2013) 56 Cal.4th 165, 193.) In any event, the vouching claim fails on
the merits.
       The prosecutor did not place the prestige of the government behind Wheeler
through personal assurances of veracity, or suggest that information not presented to the




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jury supported his testimony. (People v. Williams, supra, 56 Cal.4th at p. 193; see
People v. Zambrano (2007) 41 Cal.4th 1082, 1167, overruled on other grounds in People
v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; People v. Fierro (1991) 1 Cal.4th 173, 211.)
Rather, the prosecutor’s assurances were “ ‘based on the “facts of [the] record and the
inferences reasonably drawn therefrom, rather than any purported personal knowledge or
belief.” ’ ” (People v. Zambrano, supra, at p. 1167.) Thus, the prosecutor’s “ ‘comments
cannot be characterized as improper vouching.’ [Citation.]” (Ibid.)
       Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
                                     DISPOSITION
       The judgment is affirmed.



                                                     HOCH             , J.



We concur:



        RAYE             , P. J.



        ROBIE            , J.




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