Filed 7/11/14 P. v. Mendoza CA4/1
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                    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.
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                                     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

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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.




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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."




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                                       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.




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