Filed 9/14/16 P. v. Xenakis CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

THE PEOPLE,
                                                                                           F070829
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF157030A)
                   v.

CHRISTINA MARIE XENAKIS,                                                                 OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman II, Judge.
         Alison E. Kaylor, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-
         Christina Marie Xenakis was convicted of two counts of burglary and two counts
of misdemeanor possession of stolen property. Appellate counsel failed to identify any


         *Before     Kane, Acting P.J., Detjen, J., and Smith, J.
arguable issues from the record. After a thorough review of the record, we affirm the
judgment.
                          FACTS AND PROCEDURAL HISTORY
       The amended information charged Xenakis with three counts of first-degree
burglary (Pen. Code, §§ 459, 460, subd. (a)),1 and two counts of misdemeanor receiving
stolen property (§ 496, subd. (a)). Each of the felony counts in the amended information
also charged Xenakis with having served four prior prison terms within the meaning of
section 667.5, subdivision (b).
       Ronald Gray was sitting in his home working on his computer when he noticed a
man and a woman walk past his window. It was early in the morning, so the appearance
of the two caused him to be suspicious. He watched them walk across a neighbor’s
driveway and toward a third neighbor’s garage. He went outside and saw the man ride by
on a bicycle; the woman walked toward him carrying a chainsaw. When Gray told the
woman to stop, she ran away. Gray entered his pickup and saw a minivan in which the
woman was sitting. He pulled in front of the van. The woman backed the van up and
drove away. Gray followed, but lost sight of the minivan. A short while later he found
the minivan in the roadway turned over on its side. When Gray approached the van, he
found there was no one inside. Gray identified Xenakis as the woman he saw carrying
the chain saw and running from his neighbor’s house. Gray also authenticated a
photographic lineup in which he identified Xenakis as the woman he saw on the date of
the incident.
       Terry Edward Twombly testified that he lived near Gray, who told Twombly on
the morning in question that he had been robbed (hereafter the Twombly burglary).
Twombly confirmed that a chain saw and a bicycle were taken from his garage. He
testified the garage was attached to his house, but there was not a door from the house

       1All   statutory references are to the Penal Code unless otherwise stated.


                                              2.
into the garage. Twombly found the bicycle not far from his house a short while later.
After retrieving the bicycle, Twombly went to the area where the van had crashed. He
looked inside the van and saw his chain saw.
       Mitzie Twombly, Terry Twombly’s wife, recounted hearing from Gray on the
morning in question. She confirmed both garage doors were closed the night before the
robbery, but the side door may have been unlocked. She encountered Xenakis behind her
house shortly after the burglary. Xenakis did not admit anything, instead stating she was
trying to escape from an abusive boyfriend.
       On that same morning, Mary Cormack discovered her purse had been taken from
her house (hereafter the Cormack burglary). Her driver’s license and credit cards were
inside the purse when it was taken. She was uncertain if her check book was inside the
purse. Cormack and her husband live about three houses from the Twombly house.
       On the day preceding the above-mentioned burglaries, Suchen Whitworth, who
owns a nearby lodge, noticed that someone had stolen her phone and a set of keys to the
lodge that were both on or in the check-in desk (hereafter the Whitworth theft).
       Chris Tran was in the area camping with friends on the weekend when the above
events occurred (hereafter the Tran burglary). On Saturday of that weekend, the group
left the campground to spend time at a nearby river. When they returned, the campsite
was ransacked and numerous items were stolen from inside the tents. Tran’s duffle bag
was stolen, which contained all of his clothes and personal items.
       Jessica Nguyen was camping with Tran, and confirmed his testimony about the
events of that day. The property stolen from her included a purse. Inside the purse were
her wallet with her driver’s license and one credit card.
       Ian Dang was also camping with the group and confirmed the events of that day.
His backpack was stolen. Inside his backpack were his cellular phone, wallet, and his
clothes.



                                              3.
        Kern County Deputy Sheriff Charles Shinn was working on the morning of the
Twombly burglary. He was dispatched to the Twombly residence and proceeded to the
scene where the minivan had overturned. When the van was turned upright, Shinn
discovered inside a chain saw that was ultimately identified as belonging to Twombly
and a black pouch. Inside the pouch Shinn discovered several phones and keys, including
Dang’s phone; Whitworth’s phone and lodge key; Cormack’s keys, driver’s license,
credit card and check book; and Nguyen’s driver’s license and credit card.
        Shinn prepared the photo lineup shown to Gray and Mitzie Twombly in which
each identified Xenakis as the individual they had seen that day. Shinn also discovered
two different sets of shoe prints in the dirt near the Twombly residence. He also
discovered these same shoe prints at the Cormack residence. Later that day, Shinn
located similar shoe prints near the trailer in which Xenakis lived.
        Shinn thereafter interviewed Xenakis. She admitted taking the Twombly’s items
from their garage along with another person. She also admitted having the items in the
pouch in her possession and admitted she knew they were stolen. She admitted being at
the campsite and taking some items, but denied entering a tent to do so. She denied
stealing the items from the Cormack residence, but inferred she may have been with the
person who committed the theft. A redacted version of the interview was played for the
jury. This version of the interview was consistent with Shinn’s summary presented to the
jury.
        The information charged Xenakis with three counts of first-degree burglary. The
first count related to the Tran burglary. The jury found Xenakis guilty of burglary but
determined it was a burglary in the second degree. The second count related to the
Twombly burglary. The jury found Xenakis guilty of burglary, and determined it was a
burglary in the first degree. The third count related to the Cormack burglary. This
burglary count was pled in conjunction with the fourth count, misdemeanor possession of
stolen property. The jury found Xenakis not guilty of burglary, but found her guilty of

                                             4.
possession of stolen property. The fifth count related to the Whitworth theft, and the jury
found Xenakis guilty of misdemeanor possession of stolen property.
       Xenakis waived her right to a jury trial on the charged enhancements. The trial
court found each of the enhancements true.
       The trial court sentenced Xenakis to the aggravated term of six years for the
Twombly burglary count, enhanced by one year for a prior prison-term allegation.2 A
consecutive term of eight months was imposed for the Tran burglary count. A concurrent
sentence was imposed for the possession of stolen property counts. Xenakis’s total
prison sentence was seven years eight months.
                                       DISCUSSION
       Xenakis’s appellate counsel filed a brief pursuant to People v. Wende (1979) 25
Cal.3d 436 asserting she could not identify any arguable issues in this case. After a
thorough review of the record, we agree. The facts establishing Xenakis’s guilt were
overwhelming, including her own admissions when interviewed by the police. For the
most part, the parties agreed on jury instructions. There were no serious evidentiary
disputes, no objections during closing arguments, and the jury returned verdicts as
favorable to Xenakis as one might expect in these circumstances. The sentence was well
within the trial court’s discretion.
       We note that Xenakis made two motions for replacement of her appointed counsel
pursuant to People v. Marsden (1970) 2 Cal.3d 118. We have reviewed the transcripts
from these hearings and conclude the trial court properly denied the motions.




       2Prior to the sentencing hearing, Xenakis successfully moved to have three of her
prior convictions, for which she served sentences, reduced to misdemeanors pursuant to
Proposition 47. Because of the unsettled state of the law, the trial court concluded it
would be improper to treat the prison terms served for these convictions as enhancements
pursuant to section 667.5, subdivision (b).


                                             5.
       By letter dated September 15, 2015, we invited Xenakis to inform us of any issues
she would like us to address. Xenakis responded to our letter raising several issues.
First, she asserts both burglary convictions were found by the jury to be in the second
degree. Xenakis is mistaken. The record establishes the jury found the Twombly
burglary was a first-degree burglary.
       Xenakis also asserts she mistakenly waived her right to be sentenced by the jury.
Once again, she is mistaken. She waived her right to have the jury determine if the
enhancements were true, not for the jury to impose sentence. The trial court, not the jury,
imposes the sentence once the jury finds a defendant guilty. (People v. Hartsell (1973)
34 Cal.App.3d 8, 13 [pronouncement of judgment is judicial act], disapproved on other
grounds in People v. Karaman (1992) 4 Cal.4th 335, 348.)
       Next, Xenakis asserts the trial court erroneously imposed the aggravated term. We
have reviewed her probation report and concur with the trial court that the circumstances
in aggravation justified imposition of the aggravated term. The trial court noted the
following circumstances in aggravation: (1) Xenakis’s prior convictions as an adult and
her sustained juvenile petitions were numerous; (2) she was on a grant of misdemeanor
probation when the crime occurred; and (3) her prior performance on probation was
unsatisfactory as she continued to reoffend. No circumstances in mitigation were found.
The trial court acted well within its discretion when it chose the aggravated term.
       Finally, Xenakis asked if a letter she submitted to the trial court had been entered
into her record. She provided a copy with her letter to this court. The letter was marked
as “Court’s Exhibit [No.] 1.” It was provided to the court by Xenakis during Shinn’s
testimony. The letter was authored by another inmate and alleges that Deputy Shinn
stopped the inmate for a traffic violation several years before. Shinn apparently offered
to ignore any Vehicle Code violations if the inmate performed sexual favors for Shinn.
The letter also asserts the author knew of three other women who were treated similarly
by Shinn.

                                             6.
       Defense counsel concluded the letter was not relevant to the proceedings for
several reasons. First, the testimony against Xenakis came from numerous sources, not
from Shinn. As defense counsel noted, Shinn merely collected evidence. Second, there
were apparently two Deputy Shinns with the Kern County Sheriff’s Office, and the letter
failed to provide any identifying information to distinguish between the two. Third, the
Deputy Shinn who testified had been employed with the Kern County Sheriff’s Office for
fewer than three years, and the letter asserted the incident involving the inmate occurred
four or five years before the trial. The prosecutor confirmed that Deputy Shinn was not
living in Kern County four or five years ago and had been a peace officer for fewer than
three years.
       No error occurred. The letter was not relevant and quite possibly referred to
someone other than the deputy who testified at trial. We also note the letter sent to this
court by Xenakis, which appears to be a rewritten letter by the same inmate, asserts the
Shinn incident occurred two to three years before the appeal, not four to five years before
the trial. It would appear, therefore, that the inmate or Xenakis changed the dates to
coincide with the time period Shinn was employed by the Kern County Sheriff’s Office.
This discrepancy suggests the letter was fabricated. Finally, even if we assume the letter
was tangentially relevant to the issues in this case, which it was not, and the trial court
erred in failing to admit it, which it didn’t, we would conclude the error was not
prejudicial. As defense counsel noted, Shinn’s primary role in this case was to collect
evidence, not to act as a percipient witness. Moreover, the evidence against Xenakis was
overwhelming, especially since she confessed to each of the crimes of which she was
convicted. In this case, any possible error would be harmless under any standard of
review.
                                       DISPOSITION
       The judgment is affirmed.



                                              7.
