Filed 8/24/15 P. v. Osibamowo CA2/7
Opinion following order vacating prior opinion
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SEVEN


THE PEOPLE,                                                          B256805

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA420274)
         v.

HOWARD OSIBAMOWO,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Henry J. Hall, Judge. Affirmed.
         Jeffrey J. Douglas, under appointment by the Court of Appeal, for Defendant and
Appellant.
         No appearance for Plaintiff and Respondent.


                                        _________________________
       On February 10, 2014, Howard Osibamowo was charged in an information with
one count of carjacking (Pen. Code, § 215, subd. (a)) with a special allegation he had
served three separate prison terms for felonies (Pen. Code, § 667.5, subd. (b)).
Represented by appointed counsel, Osibamowo pleaded not guilty and denied the special
allegation.
       On April 1, 2014, the trial court denied Osibamowo’s motion to replace his
appointed counsel (People v. Marsden (1970) 2 Cal.3d 118 (Marsden)). Jury trial
commenced on April 9, 2014. According to the evidence at trial, on the night of June 29,
2013, Reginald Jones was serving drinks at a nightclub he owned in Los Angeles.
Among the patrons he served were Osibamowo and a woman named Tammy. When
Jones was closing the bar around 1:00 a.m., he went outside and saw Osibamowo and
Tammy engaged in a heated discussion. Jones pulled up his car in the driveway and got
out to chain and lock up the nightclub parking lot. Osibamowo snatched the keys from
Jones’s hand, jumped into the car and turned on the ignition. Jones attempted to grab the
car keys from the ignition as Osibamowo drove down the street, dragging Jones with him.
The two men struggled and at some point, the car crashed into a parked truck, causing
Jones to be thrown into the air. Jones went back to his car and Osibamowo punched him
and fled.
       On April 14, 2014, shortly before the conclusion of the People’s presentation of
evidence, the trial court heard and denied Osibamowo’s second Marsden motion and a
request to represent himself (Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525,
45 L.Ed.2d 562] (Faretta)). Osibamowo elected not to testify in his defense.
       On April 15, 2014, the jury found Osibamowo guilty of carjacking. In a
bifurcated proceeding, Osibamowo admitted the special allegation. The trial court
sentenced Osibamowo to an aggregate state prison term of eight years: the middle term
of five years for carjacking plus one year for each of the three prior prison term
enhancements.
       We appointed counsel to represent Osibamowo on appeal. After examination
of the record, counsel filed an opening brief in which no issues were raised. On

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December 10, 2014, we advised Osibamowo he had 30 days within which to personally
submit any contentions or issues he wished us to consider. After granting him two
extensions of time, on February 17, 2015 we received a 12-page handwritten response, in
which Osibamowo set forth his version of the events of June 29, 2013 and claimed the
People’s witnesses lied at trial. Osibamowo also asserted his appointed counsel provided
constitutionally ineffective assistance during trial. Attached to Osibamowo’s response
were a police report and a portion of the reporter’s transcript of the preliminary hearing,
both of which contained hand-written notes.
        To the extent Osibamowo is challenging the sufficiency of the evidence, Jones’s
testimony constitutes substantial evidence to support the jury’s finding he committed the
crime of carjacking; determining Jones’s credibility was the exclusive province of the
jury. (See People v. Zamudio (2008) 43 Cal.4th 327, 357.) Nothing in the record
suggests Jones’s testimony was inherently improbable or physically impossible. (See
People v. Elwood (1988) 199 Cal.App.3d 1365, 1372.)
        As for Osibamowo’s version of events, he waived his right to testify and his
written account and the police report are outside the record. We cannot consider such
matters on direct appeal. (See People v. Szeto (1981) 29 Cal.3d 20, 35 [‘[m]atters not
presented by the record cannot, of course, be considered on the suggestion of counsel in
briefs or in affidavits attached thereto”].) Nor can we, on this record, determine whether
counsel rendered ineffective assistance. (Strickland v. Washington (1984) 466 U.S. 668,
686 [104 S.Ct. 2052, 80 L.Ed.2d 674].)
        We have examined the record and are satisfied Osibamowo’s appellate attorney
has fully complied with the responsibilities of counsel and no arguable issue exists.
(Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756];
People v. Kelly (2006) 40 Cal.4th 106, 112-113; People v. Wende (1979) 25 Cal.3d 436,
441.)




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                                    DISPOSITION

      The judgment is affirmed.




                                                ZELON, J.




We concur:




      PERLUSS, P. J.




      IWASAKI, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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