Filed 1/13/15 P. v. Cervantes CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F066466
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF142020A)
                   v.

DANIEL CERVANTES,                                                                        OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Robert S.
Tafoya, Judge.

         Richard Doctoroff, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-
         Defendant Daniel Cervantes was convicted by jury of first degree residential
burglary (Pen. Code,1 §§ 459, 460, subd. (a)), and receiving stolen property (§ 496, subd.

         1Further statutory references         are to the Penal Code unless otherwise indicated.
(a)) after a trial by jury. The jury acquitted defendant of exhibiting a deadly weapon
(§ 417, subd. (a)(1)). In a bifurcated court trial, the court found true defendant’s prior
conviction for a serious or violent felony (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)).
The trial court sentenced defendant to a total term of eight years in prison.
       On appeal, defendant contends (1) the evidence was insufficient to support his
convictions; (2) the trial court erred in failing to define the term “theft” as used in the
burglary instruction; (3) his trial counsel was ineffective for describing his prior
conviction as one of “terrorist threats” to the jury; and (4) the trial court abused its
discretion in ordering $1,299 in restitution to the victim. We find no error and affirm.
                                           FACTS
       After attending a party with his family, Ralph Zepeda returned to his home
sometime in the evening hours. Zepeda explained when he and his family left the home
earlier that evening, his gate was closed and a window-mounted air conditioning unit was
properly affixed to a back window. Upon returning home, Zepeda went to the front door
and unlocked it then returned to his vehicle to unload some items. At that point, Zepeda
noticed his gate was open and the air conditioning unit had been removed and placed on
the ground. In addition, his 42-inch flat screen television set, which had previously been
located inside the home, was now sitting on the ground by the window that was open. He
also observed two people, whom he later identified as defendant and his teenage brother
M., run from his property. Initially, he only noticed defendant running from the home,
but as he chased after him, he also noticed M. was running from the home as well.
During the chase, defendant stopped running and Zepeda passed him, continuing after
M.
       As Zepeda gave chase, he noticed M. appeared to be holding something in his
pocket. M. eventually stopped and Zepeda caught up with him. Once M. stopped,
Zepeda confronted him about the situation. He denied assaulting M. in any way.
Meanwhile, defendant approached and began yelling something to the effect of “what
you going to do now” and brandishing a small knife with a three-inch blade. Defendant

                                               2.
was holding the knife up, pointing it toward him. When Zepeda noticed defendant
holding the knife, he stepped back and then ran home.
       Zepeda explained he knew defendant and M. from the neighborhood and had
known them for 10 years. M. and Zepeda’s 13-year-old son are friends. Zepeda testified
he had not given anyone permission to enter his home or take his property.
       Upon returning home, Zepeda noticed several items missing from his home,
including a PlayStation, video games, and clothing, including sports jerseys belonging to
his children. After discovering the missing items, Zepeda called the police who
responded a short time later.
       Bakersfield police officer Chad Gross responded to the report of the burglary.
After taking a report, he conducted an in-field identification where Zepeda identified M.
as one of the perpetrators. Subsequently, Gross searched the residence shared by
defendant and M. and found a PlayStation and some clothing that matched the description
of the stolen property. The items, later identified by Zepeda as belonging to him, were
located in the garage. Defendant was not present when Gross searched the home. Gross
asked defendant’s grandmother to contact him when defendant returned.
       Approximately one and a half hours later, Gross recontacted defendant’s
grandmother and learned defendant had returned home. Gross and his partner went to the
home and contacted defendant in his bedroom. After placing him in handcuffs and
reading him his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, the officer
questioned defendant about what had happened earlier. Defendant stated he did not know
what the officers were talking about, became uncooperative, and refused to answer any
more questions. Gross noted he did not recover any stolen property or a knife from
defendant’s room.
Defense Case
       Defendant testified in his own defense. On the day in question, he was living with
his brother M. and his grandmother. Earlier that day his grandmother asked him to look
for M. because she was worried about him. Defendant thought M. could be at Zepeda’s

                                            3.
home because he knew M. and Zepeda’s son were good friends and were often together.
Defendant walked by the home, but did not see M. there, so he began walking to another
of M.’s friend’s homes in the neighborhood. Defendant denied seeing Zepeda arrive
home as he was out looking for M.
       As he was walking around the area, he noticed someone run past him. Initially,
defendant did not notice it was M., but then realized it was him. He yelled at M. to go
home, and M. stopped running. He then noticed Zepeda approach and angrily grab M. by
the neck. Defendant began to yell at Zepeda to let his brother go. He denied threatening
Zepeda or brandishing a knife. Zepeda said M. had broken into his home and he was
going to call the police. As Zepeda was yelling, M. ran off. Afterwards, defendant went
home and told his grandmother what had happened. She asked him to continue looking
for M., so defendant left again to look for him. Defendant acknowledged he did not tell
the police any of this when they questioned him. He testified that when the police
questioned him, he did not know what they were talking about.
                                      DISCUSSION
I.     Sufficient Evidence Supports the Convictions
       Defendant contends the evidence was insufficient to support his convictions.
Specifically, he argues there was no testimony or direct evidence establishing defendant
went inside Zepeda’s home, had the intent to steal upon his entry, or had possession of
the stolen property. We find the evidence sufficient to support the convictions.
       When a defendant challenges the sufficiency of the “evidence to support the
judgment, our review is circumscribed. [Citation.] We review the whole record most
favorably to the judgment to determine whether there is substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from which a reasonable trier of
fact could have made the requisite finding under the governing standard of proof.” (In re
Jerry M. (1997) 59 Cal.App.4th 289, 298.) Further, we review “the evidence in the light
most favorable to the prosecution, [asking whether] any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. [Citation.] This

                                            4.
familiar standard gives full play to the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts. Once a defendant has been found guilty of the crime
charged, the factfinder’s role as weigher of the evidence is preserved through a legal
conclusion that upon judicial review all of the evidence is to be considered in the light
most favorable to the prosecution.” (Jackson v. Virginia (1979) 443 U.S. 307, 319.)
“Before a judgment of conviction can be set aside for insufficiency of the evidence to
support the trier of fact’s verdict, it must clearly appear that upon no hypothesis whatever
is there sufficient evidence to support it.” (People v. Rehmeyer (1993) 19 Cal.App.4th
1758, 1765.)
       “Whether the evidence presented at trial is direct or circumstantial, … the relevant
inquiry on appeal remains whether any reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Towler (1982) 31
Cal.3d 105, 118-119.)

       “‘Although it is the duty of the jury to acquit a defendant if it finds that
       circumstantial evidence is susceptible of two interpretations, one of which
       suggests guilt and the other innocence [citations], it is the jury, not the
       appellate court which must be convinced of the defendant’s guilt beyond a
       reasonable doubt. “‘If the circumstances reasonably justify the trier of
       fact’s findings, the opinion of the reviewing court that the circumstances
       might also reasonably be reconciled with a contrary finding does not
       warrant a reversal of the judgment.’” [Citations.]’ [Citation.]
       ‘“Circumstantial evidence may be sufficient to connect a defendant with the
       crime and to prove his guilt beyond a reasonable doubt.”’ [Citations.]”
       (People v. Stanley (1995) 10 Cal.4th 764, 792-793.)
       A.      The Evidence Was Sufficient to Support the Burglary Conviction
       In order to establish the crime of burglary, the prosecution must prove, as relevant
here, an unlawful entry into a residence with the intent to commit a larceny. (§§ 459,
460, subd. (a); People v. Allen (1999) 21 Cal.4th 846, 863, fn. 18; People v. Montoya
(1994) 7 Cal.4th 1027, 1051.) The crime is complete upon entry into the defined
structure with the larcenous intent, regardless of whether any theft takes place. (People v.
Montoya, supra, at pp. 1051-1052.)
                                               5.
       Many cases have held that evidence of surreptitious entry, flight upon
confrontation, and failure to provide a reason for being on the premises constitute
sufficient evidence from which a finder of fact may infer the intent to commit theft
sufficient for conviction of burglary. Indeed, “[b]urglarious intent [can] be reasonably
and justifiably inferred from the unlawful and forcible entry alone.” (People v. Michaels
(1961) 193 Cal.App.2d 194, 199; see People v. Martin (1969) 275 Cal.App.2d 334, 339,
People v. Stewart (1952) 113 Cal.App.2d 687, 690–691.)
       Defendant contends the evidence was insufficient to conclude he entered Zepeda’s
home and that he did so with the requisite intent. Defendant’s quarrel with the evidence
appears to be that there was no direct evidence of his entry into the home. However,
direct evidence of his entry was not required. It is elementary that the fact of the entry
may be proven through circumstantial evidence, as was done here. (People v. Conley
(1963) 220 Cal.App.2d 296, 299; People v. Murphy (1959) 173 Cal.App.2d 367, 373.)
       The evidence established Zepeda saw defendant running from the area of his
opened gate shortly after he returned home. Zepeda noted the gate was closed prior to his
leaving earlier that day. In addition to the open gate, Zepeda observed his window-
mounted air conditioning unit had been removed from the window and the window was
open. His 42-inch flat screen television set, which was inside the home when he left only
hours earlier, was now located on the ground just outside the now opened window and
opened gate. These circumstances indicated someone removed his air conditioning unit
and climbed into the home through the opened window. The fact defendant was seen
running from the home, from the area near the opened window, while property that was
previously inside was now outside by the window, strongly indicated defendant had
entered the home and removed the television set and other property.
       Defendant seems to argue there was no evidence he, rather than his brother, was
the one who entered the home. Not so. Defendant’s flight from the home coupled with
the other circumstances outlined above provided evidence defendant participated in the
entry of the home. Indeed, the facts of this case are quite similar to those of People v.

                                             6.
Martin, supra, 275 Cal.App.2d 334. There, the police were dispatched to a report of a
burglary in progress at a medical building. Upon their arrival, they discovered a smashed
window with a hammer nearby. The interior of the office was in disarray, and a drug
cabinet was opened. The officers began checking the surrounding area and, after hearing
some noises coming from bushes at the rear of the building, saw two men running from
the back of the building. The officers gave chase. During the pursuit, the defendant fell
and was assisted to his feet by the other man. The defendant was ultimately
apprehended. The defendant claimed he happened to be in the vicinity to visit a woman
who lived nearby. He claimed he saw a man run from the office and that he also ran, but
he denied being assisted by the other man. He denied any participation in the burglary.
(Id. at p. 336.)
        On appeal, the defendant claimed the evidence was insufficient to support his
conviction because he was not seen entering or leaving the building. This court2 affirmed
the judgment, explaining the defendant’s flight from the building shortly after police
arrived on scene, in addition to his failure to adequately explain his presence and flight,
provided sufficient evidence for the jury to infer he participated in the burglary. (People
v. Martin, supra, 275 Cal.App.2d at p. 339.) Similarly here, defendant’s presence near
the apparent point of entry of the home, his immediate flight upon Zepeda’s return home,
the fact he confronted Zepeda when Zepeda approached M., his unsatisfactory
explanation for his presence, and the fact the stolen property was recovered from his
home all lead to the reasonable inference defendant had in fact entered Zepeda’s home.
        In addition, the facts were sufficient to demonstrate defendant’s intent to steal
upon his entry into the home. “Proof of intent is rarely susceptible of direct proof and
may be inferred from the circumstances of the case.” (People v. Moody (1976) 59
Cal.App.3d 357, 363.) “‘Burglarious intent can reasonably be inferred from an unlawful


        2Defendant   asks this court to reconsider the opinion in People v. Martin. We decline his
invitation.


                                                 7.
entry alone.’” (People v. Martin, supra, 275 Cal.App.2d at p. 339.) Circumstances such
as flight upon discovery may also support an inference of felonious intent. (Ibid.) Here,
there was obviously an entry and a subsequent theft. The fact defendant took items from
the home after his entry is strong evidence he intended to steal upon entering the house.
Indeed, under the facts of the case no other intent is readily apparent. Zepeda’s home
was burglarized while he was away. The apparent means of entry was the window from
which the air conditioning unit had been removed. Notably, Zepeda testified that when
he returned home, he unlocked the front door. No other evidence was presented that any
other door or window to the home was unlocked or tampered with. Thus, it appeared the
entry was, in fact, made through the window. Outside next to that open window, Zepeda
found his 42-inch television set. It was reasonable for the jury to infer defendant and his
brother removed the television from the home through that window. The circumstances
surrounding the burglary—including the means of entry and where the property was
located—all indicate defendant had the intent to commit a theft upon his entry. The fact
a theft was completed only bolsters that finding. (People v. Abilez (2007) 41 Cal.4th 472,
508; see People v. Du Bose (1970) 10 Cal.App.3d 544, 551 [“There is no better proof that
[defendant] entered the [building] with intent to commit robbery than a showing he did in
fact commit robbery after his entry”].) Consequently, we conclude the evidence was
sufficient to support the burglary charge.
       B.     The Evidence Was Sufficient to Support the Receiving Stolen Property
              Conviction
       In order to prove the crime of receiving stolen property, the prosecution must
prove: (1) property was stolen, (2) the defendant knew the property was stolen, and (3)
the defendant has possession of the stolen property. (People v. Land (1994) 30
Cal.App.4th 220, 223.) Defendant argues the evidence failed to establish he had
possession of the property knowing it was stolen. We disagree.
       As we have already explained, the evidence supported the jury’s finding that
defendant himself participated in the burglary. Having participated in its taking, the


                                             8.
evidence was likewise sufficient to support the additional finding he also knew the
property was stolen. There was also strong circumstantial evidence of defendant’s
possession of the property. The victim’s property was found in the garage of the home he
shared with his brother and grandmother. Possession of stolen property may be either
actual or constructive, and there is no requirement that it be exclusive. (People v. Land,
supra, 30 Cal.App.4th at p. 223.) While, as defendant asserts, mere presence near stolen
property is insufficient in and of itself to support a conviction for receiving stolen
property (People v. Martin (1973) 9 Cal.3d 687, 696), the record discloses significantly
more evidence of defendant’s possession.
       Defendant was seen running from the scene of the crime along with his brother,
who appeared to be holding something. When Zepeda caught up to M., defendant
confronted Zepeda, demanding M.’s release. A short time later, property identified as
belonging to Zepeda and taken in the burglary was located in the garage of defendant’s
home. Defendant had left the home, knowing Zepeda had just accused his brother of the
burglary. Defendant’s presence near the scene of the crime, coupled with his flight, and
the location of the property within his home all lead to the reasonable conclusion he knew
of the presence of stolen property within his garage.
II.    The Instructions Were Proper
       At trial, the jury was instructed regarding the elements of burglary as follows:

              “To prove that the defendant is guilty of this crime, the People must
       prove that:

              “1. The defendant entered a building,

              “AND

              “2. When he entered a building he intended to commit theft.

               “To decide whether the defendant intended to commit theft, please
       refer to the separate instructions that I will give you on those crimes.

             “A burglary was committed if the defendant entered with the intent
       to commit theft. The defendant does not need to have actually committed


                                              9.
        theft as long as he entered with the intent to do so. The People do not have
        to prove that the defendant actually committed a theft. [¶] … [¶]

               “The People allege that the defendant intended to commit a theft.
        You may not find the defendant guilty of burglary unless you all agree that
        he intended to commit a theft at the time of the entry.”
        The trial court never provided an instruction defining theft. Defendant argues the
trial court’s failure to give an instruction defining the elements of theft, on its own
motion, rendered the burglary instruction incomplete. The People argue defendant’s
failure to request an instruction defining theft forfeits his claim on appeal. Defendant
responds his claim is not forfeited as the purported error affected his substantial rights.3
(§ 1259.) We need not determine whether defendant’s claim was forfeited because
assuming arguendo it was preserved, we conclude the instructions were adequate.
        It is well settled a trial court has a duty to instruct the jury “on general principles
of law that are commonly or closely and openly connected to the facts before the court
and that are necessary for the jury’s understanding of the case.” (People v. Montoya,
supra, 7 Cal.4th at p. 1047.) It is likewise settled an instruction based upon the language
of the statute defining the crime is generally appropriate and “ordinarily sufficient when
the defendant fails to request amplification,” especially if “the jury would have no
difficulty understanding the statute without guidance.” (People v. Poggi (1988) 45
Cal.3d 306, 327.) The crime of burglary is defined in section 459 as entry into a building
“with intent to commit grand or petit larceny or any felony.” As we have already noted,
the trial court instructed the jury that burglary consisted of the entry into a building with
the intent to commit theft. Thus, the question is whether the term “theft” is commonly
understood as encompassing the definition of theft by larceny. We conclude it is.
        Theft by larceny “requires the taking of another’s property, with the intent to steal
and carry it away.” (People v. Gomez (2008) 43 Cal.4th 249, 254-255.) Indeed,


        3Defendant   further argues in the alternative that the failure to request the instruction
constituted ineffective assistance of counsel.


                                                  10.
CALCRIM No. 1800 defines the crime of theft by larceny as the taking of another’s
property, without the owner’s consent, with the intent to deprive the owner of the
property, and moving the property even a short distance and keeping it for any period of
time. The elements of theft by larceny simply do not differ from the everyday
understanding of the word “theft.” One dictionary defines theft as “the act or an instance
of stealing; larceny.” (American Heritage Dict. (4th ed. 2006) p. 1793.) It defines
stealing as “tak[ing] (the property of another) without right or permission.” (Id. at p.
1696.) Webster’s New World dictionary provides a similar definition of theft (“the act or
an instance of stealing; larceny”) and stealing (“tak[ing] or appropriat[ing] (another’s
property, ideas, etc.) without permission, dishonestly, or unlawfully, esp. in a secret or
surreptitious manner”). (Webster’s New World Dict. (3d college ed. 1989) pp. 1386,
1311.) These definitions demonstrate the common usage of the word “theft”
encompasses the definition of theft by larceny. Although the dictionary definition does
not explicitly include the intent to deprive the owner of the property, that meaning is
implicit within the meaning of theft.
       As the People point out, the prevalence of theft within our society is such that
almost everyone has either been a victim, or knows a victim, of theft. It is commonly
understood when a person steals property, that person has no intention of returning it to
its rightful owner. The prevalence of common devices placed in automobiles, cellular
telephones, and other electronics to locate property after it has been stolen demonstrates
the understanding theft includes the intent to deprive the owner of property permanently.
Because the term “theft” is commonly understood to include the elements of larceny, the
trial court did not have a sua sponte duty to instruct on the definition of theft.
       Indeed, at least one other court has reached a similar result. In People v. Corral
(1943) 60 Cal.App.2d 66, 68-69, the defendant was charged with burglary after entering a
store, concealing a suit on his person and leaving. The trial court instructed the jury a
defendant commits a burglary when the defendant enters a building with the intent to
commit theft. (Id. at pp. 70-72.) The defendant argued on appeal that because the trial

                                              11.
court failed to provide an instruction defining the term “theft,” the jury was “left in
ignorance of the precise nature” of the defendant’s intent. (Id. at p. 72.) In rejecting the
claim, the court explained the only type of theft shown by the evidence was larceny. And
because the showing of intent was so clear, “we do not see how the jury could have had
any doubt about it, or misunderstood the instruction.” (Ibid.)
       Likewise here, the facts of this case are not susceptible to any intent other than the
intent to commit larceny. Zepeda came home to find his window-mounted air
conditioning unit removed, and a television, which had previously been inside, sitting just
outside the same window. He observed two people running from his home, one of whom
appeared to be carrying something. Upon further inspection, he noted several items
missing from his home. These items were located in defendant’s garage a short time
later. Based upon the facts of the case, it is apparent the entry of the home was with the
purpose to commit a theft, and the perpetrator intended to permanently deprive Zepeda of
the property.
       Because the trial court had no duty to provide any further instruction regarding the
definition of theft, we find no error in the court’s instruction. To the extent defendant
argues the instruction, as given, failed to alert the jury of the requirement he possess the
intent to commit a theft prior to entering the home, we reject the claim. The jury was
repeatedly told in the court’s instruction that the People were required to prove defendant
possessed the intent to commit a theft at the time of entry into the home. Furthermore,
the prosecutor highlighted this requirement in closing argument. Indeed, it was apparent
from the trial that burglary in fact occurred; the question was whether defendant
participated in the burglary. Considering the jury instructions, in light of the evidence
and arguments of counsel, there is no reasonable possibility any juror did not understand
defendant had to possess the intent to steal at the time he entered the home.
       Anticipating this conclusion, defendant argues his trial counsel was ineffective for
failing to request additional instructions defining theft. In order to prevail on an
ineffective assistance of counsel claim, an appellant must demonstrate trial counsel’s

                                             12.
performance fell below the standard of reasonableness and there is a reasonable
probability the result would have been more favorable had the defendant’s counsel
provided adequate representation. (Strickland v. Washington (1984) 466 U.S. 687, 694;
People v. Bolin (1998) 18 Cal.4th 297, 333.) However, “a court need not determine
whether counsel’s performance was deficient before examining the prejudice suffered by
the defendant as a result of the alleged deficiencies. If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will
often be so, that course should be followed.” (Strickland v. Washington, supra, at p.
697.)
         Even if we were to assume defendant’s counsel was deficient in failing to request
additional instructions defining theft for the jury, it is apparent from the evidence
defendant would not have received a more favorable result had such an instruction been
provided. As we have already explained, at trial there was no question or argument as to
whether a burglary occurred. Zepeda left his home earlier that day and returned to find
an air conditioning unit removed from a window, a television placed outside the window,
property missing, and defendant and his brother running from the residence. The stolen
property was recovered at defendant’s home shortly thereafter. As our Supreme Court
has explained, the fact a defendant completes a theft after entry into a home is strong
circumstantial evidence of intent to steal upon the entry. (People v. Abilez, supra, 41
Cal.4th at p. 508; see People v. Du Bose, supra, 10 Cal.App.3d at p. 551 [“There is no
better proof that [defendant] entered the [building] with intent to commit robbery than a
showing he did in fact commit robbery after his entry”].) The issue presented at trial was
whether defendant also participated in the crime, not whether he possessed the intent to
commit a theft when he entered the home. The state of the evidence compels the
conclusion there is no reasonable probability defendant would have received a more
favorable result had the trial court defined theft for the jury. As such, defendant’s claim
fails.



                                              13.
III.   The Manner in Which Trial Counsel Described Defendant’s Prior Conviction
       Did Not Constitute Ineffective Assistance of Counsel
       Prior to trial, the trial court ruled defendant could be impeached with his prior
conviction of criminal threats in violation of section 422. The impeachment evidence
was limited to the fact of the prior conviction, which the court determined to be a crime
of moral turpitude. During his direct examination of defendant his counsel inquired as to
whether he had a prior felony conviction for “terrorist threats.” He admitted his prior
conviction, noting he pled guilty to the charge. On cross-examination the prosecutor
revisited the subject, highlighting the fact defendant suffered a prior conviction for
“criminal threats.”
       During his initial closing argument, the prosecutor only noted defendant suffered a
prior felony conviction involving moral turpitude, which could be used to determine his
credibility. Defense counsel, in his closing, argued defendant’s prior conviction for
“terrorist threats” had nothing to do with theft, it only showed he had “threaten[ed]
somebody with harm” in the past. Defense counsel pointed out defendant had pled guilty
to that offense because he was guilty, insinuating he proceeded to trial on this case
because he was not guilty. Furthermore, defense counsel defined the crime for the jury as
“threatening somebody with harm.” In rebuttal, the prosecutor agreed with defense
counsel that defendant’s prior conviction was for “threatening someone.”
       On appeal, defendant argues his trial counsel was ineffective for referring to his
prior conviction of violating section 422 by its former heading of “terrorist threats” rather
than its current heading of “criminal threats.” He claims referring to the crime in that
manner “unnecessarily associated [defendant] with … political terrorists and the war on
terror.” He claims the prejudice from these references was “monumental.” We disagree.
       To establish ineffective assistance of counsel on appeal, defendant must
demonstrate his trial counsel rendered inadequate assistance and a reasonable probability
he would have received a more favorable outcome at trial had his counsel provided
adequate representation. (Strickland v. Washington, supra, 466 U.S. at p. 694; People v.


                                             14.
Bolin, supra, 18 Cal.4th at p. 333.) Defendant makes little attempt to demonstrate, as is
his burden, that the brief and isolated references noted above to the term “terrorist
threats” caused him any prejudice. Rather, he simply argues “[w]rongly naming the
crime in … section 422 has no probative value, while the prejudicial impact of
associating [defendant] with terrorists is monumental.” On the facts of this case, we find
no prejudice.
       To the extent defendant likens the brief and isolated references to the term
“terrorist threats” to the introduction of propensity evidence, we reject the claim. The
title was simply used as a common description of the crime for which defendant had been
convicted. There was never any insinuation defendant was somehow connected to
political acts of terror. To the contrary, prior to 2000, the crime defined in section 422,
currently denominated “criminal threats,” was entitled “terrorist threats.” (Stats. 2000,
ch. 1001, § 4; Stats. 1988, ch. 1256, § 4, p. 4184; People v. Toledo (2001) 26 Cal.4th 221,
224, fn. 1.) The text of the statute was the same both before and after the amendments.
(Toledo, at p. 224, fn. 1.) Thus, until 2000, a violation of section 422 was labeled a
“terrorist threat” even though the body of the statute did not reference “terrorists” or
“terrorism.” (People v. Moore (2004) 118 Cal.App.4th 74, 78–79.) Even after its
amendment in 2000, courts sometimes still referred to violations of section 422 as
“terrorist threats.” (See, e.g., People v. Brown (2004) 33 Cal.4th 892, 916 (dis. opn. of
Brown, J.); In re Q.N. (2012) 211 Cal.App.4th 896, 899; People v. Gerold (2009) 174
Cal.App.4th 781, 784; People v. Gaut (2002) 95 Cal.App.4th 1425, 1430.) Indeed,
although defendant was convicted of the crime in 2008, his California Law Enforcement
Telecommunication System report, which was admitted into evidence in the bifurcated
trial on his priors, listed defendant’s prior conviction as “threaten crime with intent to
terrorize.”
       The evidence was never used as potential character evidence in any way. In fact
the jury was specifically limited regarding the use of the evidence solely as to the issue of
credibility. No attempt was made to discuss the underlying crime, nor was any

                                             15.
insinuation made that by virtue of the prior crime defendant committed the current
burglary. To the contrary, in closing argument defense counsel argued just the opposite:
a prior conviction for “terrorist threats” had nothing to do with theft. Defense counsel’s
reference to the prior offense was not such as to liken defendant to a terrorist. Rather, the
prior was mentioned in an exculpatory manner, with counsel arguing that when defendant
had in fact committed a crime in the past, he pled to the offense. Furthermore, the jury
was expressly informed it could only use the fact of defendant’s prior conviction as
bearing on defendant’s credibility and for no other purpose.
       Moreover, to the extent the jury would have considered the description of
“terrorist threats” as one inferring defendant had a bad character and propensity to
commit unsavory crimes, we note the association would have had much more impact on
the brandishing charge than on the burglary charge. Zepeda testified defendant
brandished a knife and made several comments to him such as “what you going to do
now.” Despite the characterization of his prior as one of “terrorist threats,” the jury
acquitted defendant of the only charge even remotely similar in nature to a threat.
Clearly, the description did not prevent the jury from considering the charges based only
upon the evidence. Where a jury acquits a defendant of some charges, and convicts on
others, it shows the jury’s ability to consider each count on the evidence presented and
nothing more. (See, e.g., People v. Smith (2003) 30 Cal.4th 581, 617.) On this record,
defendant has failed to demonstrate there is a reasonable probability he would have
received a more favorable outcome had his counsel not described his prior offense as
“terrorist threats.” Therefore, his claim fails.
IV.    The Restitution Order Was Proper
       At the sentencing hearing, the trial court ordered defendant to pay $1,299 to the
victim in direct restitution. Defense counsel never objected to this order. As defendant
acknowledges, the failure to object to a restitution order in the trial court forfeits the
claim on review. (People v. Brasure (2008) 42 Cal.4th 1037, 1075.) Anticipating this



                                              16.
result, defendant asserts his trial counsel was ineffective for failing to object to the
restitution order. We find no error.
       Defense counsel’s failure to object rarely establishes ineffective assistance.
(People v. Avena (1996) 13 Cal.4th 394, 444–445.) “[W]hen the reasons for counsel’s
actions are not readily apparent in the record, we will not assume constitutionally
inadequate representation and reverse a conviction unless the appellate record discloses
‘“no conceivable tactical purpose”’ for counsel’s act or omission.” (People v. Lewis
(2001) 25 Cal.4th 610, 674–675; accord, People v. Mendoza Tello (1997) 15 Cal.4th 264,
266–267 [“‘“[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”]; People v. Ray (1996) 13
Cal.4th 313, 349 [“In order to prevail on [an ineffective assistance of counsel] claim on
direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose
for the challenged act or omission”].)
       Here, we cannot say there was no reasonable choice not to object to the restitution
amount. According to the probation report filed December 28, 2012, Zepeda suffered
loss for “stolen or damaged property” in the amount of $1,299. Defendant notes,
however, a victim impact statement dated two weeks earlier stated Zepeda had
“recovered most of [his] property” and listed the amount of loss at “0.” Consequently,
his counsel was ineffective for failing to object to the restitution amount. We disagree.
       Because the victim impact statement was completed prior to the probation report,
defense counsel could have had knowledge the probation officer spoke to the victim
about the loss. Indeed, according to the victim’s statement, he recovered “most” of his
property. Zepeda testified “some” of his property was returned, and specifically noted
the video games were not. Defense counsel may have been aware the probation officer
had obtained additional information regarding the loss. Furthermore, the probation report

                                              17.
ordered restitution for stolen or damaged property. The evidence showed Zepeda’s air
conditioning unit was removed from his window. Through his investigation, defense
counsel could have been aware the restitution included damage to the air conditioning
unit, the window, or to other items. Because there was no objection to the order, no
evidence was developed on the issue. Therefore, we cannot say the failure to object was
not the result of defense counsel’s possession of additional information. Likewise, it is
impossible to determine from this record whether there is a reasonable probability of a
more favorable result. As such, defendant’s claim must fail.
                                        DISPOSITION
       The judgment is affirmed.

                                                             ___________________________
                                                                                 PEÑA, J.
WE CONCUR:


 ________________________________
POOCHIGIAN, Acting P.J.


 ________________________________
OLIVER, J.*




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


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