Filed 10/16/13 P. v. Evans CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E058294

v.                                                                       (Super.Ct.No. RIF124813)

ROBERT CHARLES EVANS,                                                    OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Michele D. Levine,

Judge. Affirmed.

         Laura Schaefer, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




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               I. SUMMARY OF FACTS AND PROCEDURAL HISTORY1

         In July 2005, defendant and appellant Robert Charles Evans and a female

accomplice entered a Kohl’s store where it appeared the accomplice concealed items of

clothing in her bag or backpack. The two were being watched by Kohl’s loss prevention

personnel. Defendant left the store ahead of the accomplice and got into the driver’s side

of a pickup truck and drove toward the front of the store. There was no one else in the

truck.

         The accomplice left the store without paying for the items in her bag. When a

Kohl’s loss prevention employee attempted to stop her, she jumped into the back of the

truck and screamed, “Leave[,] [l]eave” or “[g]o, go, go.” As defendant drove away, the

police arrived in a marked patrol car. The officer saw defendant driving the truck. A

high-speed chase ensued. Eventually, defendant pulled into a parking lot, jumped out of

the driver’s seat, fled on foot, and was apprehended.

         After his arrest, defendant told the police he did not know his accomplice was

going to steal anything from Kohl’s and that the accomplice, not he, drove the truck away

from the store.

         At trial, the prosecution relied on Kohl’s video surveillance recordings and on

testimony by Kohl’s personnel and police officers identifying defendant as the driver of

the getaway truck.


         1
        We have granted defendant’s request to take judicial notice of the record in
defendant’s prior appeal in case No. E045244.


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       In contrast to his statements in his postarrest interview, defendant testified that a

third person, “Joe,” was the driver of the getaway truck. He explained that when the

police chase began, he told Joe to let him out of the truck because he did not want to be

involved, but Joe kept driving.

       A jury convicted defendant of felony petty theft (having been previously convicted

of carjacking), burglary, and evading arrest. The jury also found true allegations of six

strike prior convictions.

       Prior to sentencing, defendant indicated he wanted to represent himself and move

for a new trial based on the ineffectiveness of his trial counsel. The court appointed

counsel “as to the issue of whether or not to file a motion for new trial based on

inadequacy of counsel.” The new counsel subsequently informed the court that the

alleged inadequacy of trial counsel was not a proper basis for a new trial motion. The

court never inquired of defendant as to the reasons why he believed his counsel was

ineffective. At a subsequent hearing, defendant asked the court if he could represent

himself. The court told him he could not.

       The court subsequently denied defendant’s motion to dismiss defendant’s strike

priors pursuant to Penal Code section 1385 and People v. Superior Court (Romero)

(1996) 13 Cal.4th 497. He was sentenced to 27 years to life.

       On appeal, this court held that defendant’s statements to the court triggered the

court’s duty to hold a Marsden2 hearing, which the court failed to do. We reversed the

       2   People v. Marsden (1970) 2 Cal.3d 118 (Marsden).


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judgment with directions to determine whether defendant desired to represent himself or

have new counsel appointed to represent him for purposes of making a motion for a new

trial and, if so, to conduct a hearing pursuant to Marsden or Faretta v. California (1975)

422 U.S. 806. (People v. Evans (Sept. 1, 2009, E045244) [nonpub. opn.].)

       Upon remand, defendant indicated he desired the appointment of new counsel.

The trial court then conducted a Marsden hearing and denied defendant’s motion for new

counsel. However, when defendant’s attorney thereafter declared a conflict, the court

appointed new counsel for defendant.

       In June 2011, defendant, with the aid of counsel, filed a Romero motion to dismiss

defendant’s strike priors. The court denied this motion.

       In April 2012, defendant requested the appointment of substitute counsel and a

Marsden hearing. The court held the requested hearing and denied the request for new

counsel.

       In May 2012, defendant requested to proceed in propria persona. The court

informed defendant of his right to have counsel appointed for him and of the risks in

representing himself. Defendant acknowledged, in writing and in court, his

understanding of his rights and the risks of self-representation. After determining that

defendant’s decision to represent himself was made knowingly, intelligently, and

voluntarily, the court granted defendant’s request.

       In August 2012, defendant filed a motion for new trial. This motion was

subsequently withdrawn. He filed a second motion for new trial in September 2012. The



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motion was based upon the alleged failure of his counsel to preserve and introduce

evidence of a recording of a 911 call regarding the incident at the Kohl’s store and a

portion of the in-store video surveillance recording that was not shown at trial.

       The People filed written opposition to the motion for new trial in October 2012.

Defendant filed a reply brief in December 2012.

       At a hearing held on December 7, 2012, defendant requested that counsel be

appointed for him for the purpose of petitioning the court to recall his sentence and for

resentencing under Penal Code section 1170.126.3 The court granted the request.

       In February 2013, defendant’s appointed counsel filed a supplemental brief in

support of defendant’s motion for new trial. Counsel stated he had reviewed the papers

filed regarding the motion for new trial, read the trial transcript, reviewed trial counsel’s

entire file, and researched the law; he declared he was satisfied that the contentions

defendant made in his moving and reply papers were the “only points of contention

potentially available to him as grounds for a new trial motion,” and that he had “found no

facts to add to the new trial motion.” He then set forth the following to “list [defendant’s]

contentions in a coherent, understandable way so that the court can easily reference them

in its consideration should [defendant’s] syntax from his writings be impenetrable”:

       3  Prior to the appointment of counsel on December 7, 2012, defendant had filed in
the superior court a petition for writ of habeas corpus to recall the sentence and be
resentenced under Proposition 36. The petition was deemed a petition for recall of
sentence pursuant to Penal Code section 1170.126. The court denied the request on the
ground that defendant had a strike prior for attempted murder with premeditation and
deliberation, which made him ineligible for resentencing. (See Pen. Code, §§ 1170.126,
subd. (e)(3), 667, subd. (e)(2)(C)(iv)(IV).)


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       “1. The Public Defenders’ office lost the 911 call placed on the day of the alleged

crimes by [a Kohl’s employee] that [the employee] she made during the video

surveillance that supposedly shows [defendant’s accomplice] stealing and [defendant]

leaving the store. This call could have been used [to] contradict the time code of the

video. The 911 dispatch logs of this call show such discrepancies. [Defendant] contends

that the failure to have or use this evidence at trial constitutes ineffective assistance of

counsel.

       “2. The 911 call of [another Kohl’s employee] was not admitted at trial, and could

have demonstrated [the employee’s] flippant tone, which could have called into question

her credibility. [Defendant] contends that this was an error of law by the Court.

       “3. [Defendant’s trial counsel] failed to focus jury attention sufficiently on the

missing video footage from the security camera. The stipulation was that the footage

ended at 2:30. But, the video itself showed that it cut off at 2:23, just before it would

have shown who was actually driving the truck. While [trial counsel] did mention this in

his closing, [defendant] contends that [counsel’s] failure to make more of it during the

trial proper, or to cross[-]examine [the Kohl’s employees] about it constitutes ineffective

assistance of counsel.”

       After a hearing held in March 2013, the court denied the new trial motion and

reinstated the original judgment. The alleged deficiencies of counsel, the court

explained, neither fell below the standard of performance of a criminal defense counsel

nor caused defendant any prejudice. Regarding the argument that exculpatory evidence



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had not been produced or preserved, the court noted that this argument had been made by

trial counsel in a Trombetta4 motion prior to trial, which the court had denied.

       Defendant appealed.

                                    II. DISCUSSION

       Upon defendant’s request, this court appointed counsel to represent him on appeal.

Counsel filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436,

setting forth a summary of the case’s procedural and factual history with citations to the

record and the record in the prior appeal. Counsel did not identify any potentially

arguable issues on appeal. She requested that we independently review the entire record

in this case. Counsel and this court offered defendant an opportunity to file a personal

supplemental brief, but he has not done so.

       Pursuant to People v. Wende, supra, 25 Cal.3d 436, we have independently

examined the record (including the record in the prior appeal) and have concluded there

are no arguable issues on appeal.




       4   California v. Trombetta (1984) 467 U.S. 479.


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                                 III. DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                    KING
                                                           J.


We concur:

RAMIREZ
                    P. J.

HOLLENHORST
                       J.




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