Filed 5/13/14 P. v. Ruelas CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048260

                   v.                                                  (Super. Ct. No. 12WF2206)

RALPH ANTHONY RUELAS,                                                  OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, John
Conley, Judge. Affirmed.
                   Harry Zimmerman, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
              A jury found defendant Ralph Anthony Ruelas guilty of first degree
burglary. The court sentenced him to 13 years in state prison. Substantial evidence
supports his conviction for burglary. The court had good cause to trail the trial. The
restitution fine was authorized by statute. Finding no error, we affirm.
                                              I
                                          FACTS
Pretrial proceedings
              Defendant was arraigned on August 17, 2012. At the conclusion of the
preliminary hearing, it appeared to the court that a felony had been committed and that
there was sufficient and probable cause to believe defendant committed the felony. The
information was filed on September 27, 2012. The matter was set for a pretrial
conference on October 18. On that date, the minute order states: “Defendant waives
statutory time for Jury Trial.” January 3, 2013 was the date set for jury trial.
              On January 3, defendant’s jury trial was trailed to January 10 “as day 7 of
10.” On January 10, a Thursday, when the case was called, the People answered not
ready for trial and Deputy Public Defender Jon Feldon answered ready. Defendant’s jury
trial was trailed to January 14 “as day 10 of 10.”
              On January 14, 2013, Feldon informed the Hon. Gregg L. Prickett as
follows: “I would be ready except for that I was sent out on another trial and currently
engaged. [¶] Mr. Ruelas informed me that he doesn’t want to have to continue his matter
and he’s requesting a Marsden [People v. Marsden (1970) 2 Cal.3d 118] hearing.” The
court transferred defendant’s trial to the courtroom of the Hon. Daniel J. Didier where the
deputy public defender was engaged. That same morning, Judge Didier ordered the
courtroom cleared and conducted a hearing pursuant to People v. Marsden, supra, 2
Cal.3d 118. The motion was denied.
              Immediately after the conclusion of the Marsden hearing, defendant
spewed a string of profanities, directing several particularly offensive remarks to Feldon

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specifically. The court stated the case was there for trial, and defendant said: “F. . .
you.” Judge Didier told him: “Mr. Ruelas, you know, I’m trying to do the best I can to
make sure I don’t . . . . [¶] . . . [¶] I’m trying to give you a fair trial and to deal with you
fairly.” Defendant continued with his profanities.
               Feldon told the court: “As I said in C-5, I would be ready on this case,
except I’m engaged in another trial in this courtroom.1 [¶] Unfortunately, I can’t answer
ready on this case.” The court inquired whether anyone else from counsel’s office could
step in to try the case, and the deputy public defender responded: “Unfortunately, your
Honor, the lawyers in my office are not fungible. We can’t just replace each other. [¶]
I’m familiar with this case. I’m prepared to go to trial on this case. And it would take
another lawyer a significant amount of time to come to speed on it. [¶] I can’t just hand it
off at the last minute.”
               The court explored the notion of appointing conflict counsel to represent
defendant, but dismissed that idea after concluding it would take any new lawyer some
time to get prepared for trial. Seemingly while reviewing defendant’s file, the court
stated: “Mr. Ruelas does have, apparently, a strike prior, five-year prior and a number of
prison priors; so this is a serious case. [¶] Tentatively, the court would find good cause to
continue the case till it can be tried. And we would trail it behind the case, the three-day
case that the court is ready to begin with Mr. Feldon. [¶] I suppose there’s one other
option. Mr. Ruelas could represent himself. [¶] Do you want to represent yourself?”
               Defendant responded: “F. . . you. If we’re going to sit here I’m going to sit
here regardless. F. . . you. I’m going to do the time, but I’m not going to keep giving
them the f. . . time to do this [continued profanities] that they’re doing.” The court said:




1            We note Feldon answered ready in this matter on January 10, and, also
answered ready in Judge Didier’s court on another matter the same day.

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“Well, we’re looking at three days until we can start your trial.” The court then ruled:
“We’ll find good cause to continue the case and trail behind the . . . case that the court is
presently engaged in.”
              On January 17, Judge Prickett called defendant’s case. Feldon answered
ready. When the court indicated it was ready to send the case out for trial, the deputy
public defender said: “At this point, I’d like to move for a dismissal in this case. Mr.
Ruelas had — his day 10 was Monday [of this week] [¶] . . . [¶] On that day, I had — on
Thursday of the previous week, I had answered ready for a different jury trial. . . .
[¶] . . . [¶] On Monday, Mr. Ruelas’ case was sent from C5 to C50. And Judge Didier
conducted a Marsden motion, which was not granted. Mr. Ruelas expressed to the court
that he did not want to continue his case any further. He wanted to go to trial. I indicated
to the court that I was ready on either case. The court elected to proceed with the trial we
had already done the limine motions on, . . . and trailed Mr. Ruelas past day 10 to
Thursday . . . which is today. Past his — past the drop dead date.”2
              The deputy public defender continued: “I’m saying, your Honor, that the
court could have gone — could have put . . . case to the side and proceeded on Mr.
Ruelas’ case, and thereby not violated Mr. Ruelas’ rights.”3



2            Despite having specifically told Judge Didier on January 14 that he could
not answer ready on defendant’s case, Feldon told Judge Prickett on January 17 that he
did answer ready on the instant case in Judge Didier’s court.

3              In reviewing the January 14 transcript from proceedings in Judge Didier’s
court, we do not see any indication Feldon requested, suggested or even hinted that Judge
Didier set the . . . case to the side and try defendant’s case instead. Yet, on January 17,
Feldon told Judge Prickett: “Your Honor, in that particular situation I would have
wanted the court . . . to have proceeded on the day 10 case. The other case had more time
before the statutory period had passed.” When Judge Prickett attempted to tie Feldon
down with regard to just what happened, Feldon told Judge Prickett: “I told Judge Didier
that I was prepared to proceed on either case,” a statement which does not appear in the
transcript of the proceedings in Judge Didier’s court.

                                              4
               After hearing more from the deputy public defender, the court stated: “The
People have the remedy, and so now this becomes a decision for the People to make. We
can — the People have the option of dismissing and refiling. That means the defendant
remains in custody during this time period, and hence, this ends up not becoming an
appellate issue, or the people can continue to assert their right, and then I will rule on
this.” The deputy district attorney responded that the People remained ready.
               The court, after hearing significant argument from deputy public defenders,
stated: “Defense motion to dismiss is denied. Matter is assigned to Judge Conley
forthwith. Counsel are ordered to go to Judge Conley’s court forthwith.”
               The deputy public defender requested the court to order a transcript of the
proceedings, which the court did. Counsel informed the court the public defender’s
office would be filing a writ and requested a stay of the trial for “at least long enough to
file a writ.” Counsel said the writ would be filed by the end of the day, and the court
stated: “Well, but then there’s tomorrow, and we don’t do trials on Friday, right? So, see
what I’m saying? And then Monday is a holiday.” The court indicated it would grant the
stay but needed to have a time waiver. The deputy public defender stated he did not want
to have his client waive time, so he was ready to proceed, but then asked for a stay until
1:30 p.m. that same day, which the court granted.
               That afternoon, the Hon. John D. Conley called the matter. The deputy
public defender informed the court a writ petition was being prepared, and that he wanted
to “start with 402’s, and then we agree that we’d be engaged in trial. But we’d like to
hold off on swearing a jury in until Tuesday.” The court asked defendant: “And you
agree with that, Mr. Ruelas?” Defendant responded: “Yes, I do.” The deputy district
attorney stated he agreed and also that “a venire is sworn in, that that established
substantial activities as relates to the trial.” At that point, the court heard pretrial
motions.



                                                5
              On Tuesday, January 22, 2013, the deputy public defender informed the
court this court had not issued a stay. Voir dire commenced.


Trial
              Defendant performed odd jobs at the home of a woman who lived across
from defendant’s mother. Defendant was in and out of the neighbor’s home every other
day for about six months, but he was not allowed in the bedroom. (Hereafter, the
neighbor will be called the victim.)
              On Friday, August 12, 2012 at about 4:00 in the afternoon, the victim left
her home, and she returned on Sunday, August 14 at about 6:30 or 7:00 in the evening.
While she was gone, defendant was hired to do some front landscaping work at the
victim’s house. She locked “everything,” and did not give defendant a key to her home
before she left. But she told him she would leave a key to the shed in the drawer of a
table on her patio.
              When she returned on Sunday evening, the victim noticed a cigarette in the
carport and noticed the family room blinds weren’t straight. When she walked inside her
home, the first thing she noticed was the television was gone. In her bedroom, all the
drawers were open and everything was gone. A window and its frame were damaged.
Two of the three televisions, the VCR, a portable DVD player and a stereo were gone.
Tools were missing from the shed, but the shed was locked and the key to the shed was in
the table. The victim described many other items that were taken as well.
              About three weeks after the burglary, the victim was in defendant’s
mother’s home and saw what she believed were some of her belongings. She specifically
recognized one of her possessions “on her coffee table” there. It was the ornate seashell
her mother brought back after visiting Hawaii for the first time. She took the shell to her
own house and told the investigator about it.



                                             6
              An investigator with the Orange County Sheriff’s Department identified
defendant as a suspect after being given the seashell. The investigator questioned
defendant about the seashell and he said he got it from Calvary Chapel Church on Golden
West. He said it was in a bag of clothing they give to needy people. He said he gave the
seashell as well as other items he found in the bag to his mother.
              During the interview of defendant, the investigator told defendant his
fingerprints were found all over the victim’s bedroom. The investigator testified that, in
fact, none of defendant’s fingerprints had been found in the interior of the victim’s home,
and described the questioning technique as a ruse. When told of the fingerprints found,
according to the investigator, defendant told her that out of curiosity “he had gone
through her drawers, her jewelry box, her closets, and that’s why his fingerprints would
be found there.”
              A Calvary Chapel employee testified. She was asked whether Calvary
Chapel gives out items such as trinkets or house wares, and responded: “Strictly clothes,
boots, blankets, towels, that kind of thing.”
                                                II
                                       DISCUSSION
              Defendant contends the evidence is insufficient to support his conviction
for first degree burglary “because there was not even slight corroborating evidence to
Ruelas’ possession of stolen property that the jury could use to infer his guilt of
burglary.” He also contends the court abused its discretion when it found good cause to
continue the trial and “deprived Ruelas of his right to a speedy trial under [Penal Code]
section 1382.” (All further statutory references are to the Penal Code.) Additionally,
defendant argues the court erred in its restitution order. Lastly, defendant argues the trial
court erred in imposing a restitution fine.




                                                7
Continuance of Trial
              A trial court has broad discretion to determine whether good cause exists to
continue a trial. (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) “Continuances shall be
granted only upon a showing of good cause. Neither the convenience of the parties nor a
stipulation of the parties is in and of itself good cause.” (§ 1050, subd. (e).) A decision
to grant a continuance under section 1382 is reviewed for an abuse of discretion. (People
v. Memro (1995) 11 Cal.4th 786, 852.)
              Defendant contends he was prejudiced when the court delayed his trial for
three days because, had the prosecution’s case been dismissed under section 1382, “that
would have created a statutory bar to a new prosecution had the motion to dismiss been
granted.”
              “(a) The court, unless good cause to the contrary is shown, shall order the
action to be dismissed in the following cases: [¶] . . . [¶] (2) In a felony case, when a
defendant is not brought to trial within 60 days of the defendant’s arraignment on an
indictment or information. . . . However, an action shall not be dismissed under this
paragraph if either of the following circumstances exists: [¶] . . . [¶] (B) The defendant
requests or consents to the setting of a trial date beyond the 60-day period. In the absence
of an express general time waiver from the defendant, or upon the withdrawal of a
general time waiver, the court shall set a trial date. Whenever a case is set for trial
beyond the 60-day period by request or consent, expressed or implied, of the defendant
without a general waiver, the defendant shall be brought to trial on the date set for trial or
within 10 days thereafter.” (§ 1382)
              “Section 1382, which interprets the state constitutional right to a speedy
trial (see Cal. Const., art. I, § 15), provides that absent a showing of good cause, a
defendant accused of a felony is entitled to a dismissal of the charges against him if he is
not brought to trial within 60 days of the filing of the information.” (People v. Johnson
(1980) 26 Cal.3d 557, 561.) “We summarize briefly our conclusions respecting the

                                              8
speedy trial issue. We conclude, first, that when a client expressly objects to waiver of
his right to a speedy trial under section 1382, counsel may not waive that right to resolve
a calendar conflict when counsel acts not for the benefit of the client before the court but
to accommodate counsel’s other clients. Secondly, we conclude that, at least in the case
of an incarcerated defendant, the asserted inability of the public defender to try such a
defendant’s case within the statutory period because of conflicting obligations to other
clients does not constitute good cause to avoid dismissal of the charges. Finally, we
reaffirm the holding of People v. Wilson (1963) 60 Cal.2d 139, that a defendant seeking
post-conviction review of denial of a speedy trial must prove prejudice flowing from the
delay of trial; we affirm here because defendant proved no prejudice.” (Id., pp. 561-562.)
              “‘The welfare of the people of the State of California requires that all
proceedings in criminal cases shall be set for trial and heard and determined at the earliest
possible time. . . . It is therefore recognized that both the people and the defendant have
the right to an expeditious disposition, and to that end it shall be the duty of all courts and
judicial officers and of all counsel, both the prosecution and the defense, to expedite such
proceedings to the greatest degree that is consistent with the ends of justice. . . .
[¶] . . . [¶] Continuances shall be granted only upon a showing of good cause. The
convenience of the parties is not in and of itself good cause. . . .’ [Citation.]” (People v.
Johnson, supra, 26 Cal.3d at pp. 562-563.)
              A number of factors are relevant to a determination of good cause under
section 1382: “‘(1) the nature and strength of the justification for the delay, (2) the
duration of the delay, and (3) the prejudice to either the defendant or the prosecution that
is likely to result from the delay.’” (Smith v. Superior Court (2012) 54 Cal.4th 592, 598.
              In the instant matter, the court tried mightily to calm defendant down and
find out what he wanted to do. In reading the transcript, while we cannot say for sure, it
does appear defendant was frustrated and upset with the result of his unsuccessful
Marsden motion and was not willing to discuss the continuance issue. Here, where it

                                               9
does not appear the deputy public defender was completely candid with the court,
defendant had previously waived time, the court had already started another trial with the
same public defender, the court would be able to get defendant’s case to trial in less time
than it would have taken another appointed lawyer to prepare to defend defendant, and
defendant’s prejudice argument is unpersuasive, we conclude there was good cause for
the court to continue the trial. The present situation does not appear to be a result of the
state not providing a sufficient number of public defenders. Under the unique
circumstances we find in this record, we cannot conclude either that defendant was
entitled to a dismissal under section 1382 or that the court abused its discretion.


Sufficiency of Evidence
              In addressing challenges to the sufficiency of evidence, “the reviewing
court must examine the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence — evidence that is reasonable,
credible and of solid value — such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of
the judgment the existence of every fact the trier could reasonably deduce from the
evidence. [Citations.] The same standard applies when the conviction rests primarily on
circumstantial evidence. [Citation.] Although it is the jury’s duty to acquit a defendant if
it finds the circumstantial evidence susceptible of two reasonable interpretations, one of
which suggests guilt and the other innocence, it is the jury, not the appellate court that
must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] ‘“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. [Citation.]”’ [Citation.]”
(People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)



                                             10
              The elements of first degree burglary are: “(1) entry into a structure
currently being used for dwelling purposes and (2) with the intent to commit a theft or a
felony.” (People v. Sample (2011) 200 Cal.App.4th 1253, 1261.)
              Here there is significant circumstantial evidence that defendant entered the
victim’s home with intent to commit a theft. He knew the victim would be away and he
had access to the exterior to do outdoor projects. In addition to the evidence defendant
gave his mother at least one of the items stolen from the victim’s home, he had the key to
the victim’s shed and some of the stolen items that were taken from the shed. The shed
was locked and the key returned to the table. Additionally, defendant’s explanation to the
investigator’s ruse about fingerprints in the bedroom demonstrated a consciousness of
guilt. Under these circumstances, we conclude sufficient evidence supports defendant’s
conviction for first degree burglary.


Restitution Fine
              The trial court imposed a restitution fine of $280 pursuant to section
1202.4, subdivision (b)(1). In 2012 the subdivision was amended to provide a minimum
restitution fine of $240. (Stats. 2012, ch. 868 § 3.) Defendant argues: “Because it
appears the trial court’s intent was to impose the minimum fine, and the crime was
committed in 2011, the restitution fine should have been $200.”
              In 2011, section 1202.4, subdivision (b)(1) provided that a restitution fine
was to be set at the discretion of the court, “but shall not be less than two hundred dollars
($200), and not more than ten thousand dollars ($10,000), if the person is convicted of a
felony.” (Former § 1202.4, subd. (b)(1); Stats. 2007, ch. 302, § 14.) We see nothing in
the record to indicate the court intended to impose only the minimum statutory amount,
and will not speculate that the court so intended.




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                                      III
                                DISPOSITION
          The judgment is affirmed.



                                            MOORE, ACTING P. J.

WE CONCUR:



ARONSON, J.



THOMPSON, J.




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