Filed 7/30/14 P. v. Ramirez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048878

         v.                                                            (Super. Ct. No. 13NF0638)

GABRIEL RAMIREZ,                                                       OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Gary
S. Paer, Judge. Affirmed.
                   Richard Glen Boire, under appointment by the Court of Appeal, for
Defendant and Appellant.
                   No appearance for Plaintiff and Respondent.
              Appellant Gabriel Ramirez was convicted by jury of residential burglary
while a nonaccomplice was present and receiving stolen property. (Pen. Code §§ 459,
460, subd. (a).) In a bifurcated proceeding, he waived his right to trial and admitted
having suffered a prior strike and a prior serious felony conviction and having served two
prior prison terms. (Pen. Code, §§ 667, 667.5, subd. (b).) The trial court sentenced
appellant to 10 years in prison, representing four years (the midterm) for the burglary,
five years for the prior serious felony conviction and another year for one of the prison
priors. The court struck or stayed the remaining counts and enhancements.
              Although circumstantial, the evidence of appellant’s guilt was very
compelling. Within hours of the subject burglary, appellant tried to use a credit card that
was stolen during the crime, and a month later, the police searched his room and found
the bulk of the stolen property. When questioned about the credit card, appellant first
said he didn’t know anything about it, then he said he found it, then he said he bought it
from a guy at the swap meet, then he said he acquired it in the parking lot of a Mexican
restaurant. Testifying on his own behalf, appellant asserted a convoluted version of the
last narrative at trial, but the jury didn’t buy it and convicted him as charged.
              He appealed, and we appointed counsel to represent him. Appellate
counsel filed a petition for a writ of habeas corpus in this court. The petition alleged
appellant’s trial attorney was ineffective for failing or incompetently seeking to suppress
1) appellant’s statements to the police as being violative of Miranda v. Arizona (1966)
497 U.S. 177 (Miranda); 2) the fruits of his room search, and 3) evidence he asserted his
Fourth Amendment rights before that search occurred. That petition was summarily
denied by this court on May 29, 2014. Since then, appellate counsel has filed for habeas
relief on the same grounds in the California Supreme Court.
              In the present appeal, appellate counsel did not argue against appellant, but
advised this court he could find no issue to argue on appellant’s behalf. (People v. Wende
(1979) 25 Cal.3d 436 (Wende).) Counsel filed a brief which set forth the facts of the case

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and the only points he could imagine might support an appellant issue: The three
ineffective assistance of counsel issues listed above, plus the propriety of the trial court’s
Miranda ruling. Having reviewed the record, we do not believe any of those potential
issues rises to the level of a colorable appellate claim.
                Appellant was given 30 days to file written argument in his own behalf and
has submitted several letter briefs. Appellant argues his trial attorney was ineffective for
failing to properly investigate the case and pursue a winning strategy at trial. The bulk of
the argument is based on matters that are outside the appellate record and is thus
unsuitable for consideration on direct appeal. (People v. Gray (2005) 37 Cal.4th 168,
211; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
                Appellant also complains his trial attorney did not object or argue any
“details” or motions on his behalf. But the record shows defense counsel succeeded on
several pretrial motions and vigorously defended appellant against the charges. The fact
appellant was ultimately convicted does not mean defense counsel was incompetent.
                In addition to attacking his trial attorney’s performance, appellant accuses
the police of tampering with evidence and failing to return certain property they seized
during the search of his room. Appellant even suggests one of the investigating officers
was high on drugs. But there is nothing in the appellate record to support these
allegations, and thus no basis for granting relief.
                Appellant directs our attention to a Marsden motion he made on the eve of
trial. (See People v. Marsden (1970) 2 Cal.3d 118.) However, review of that motion
hearing reveals no cognizable issues for appeal. In fact, by the time the hearing was over,
appellant told the court he was satisfied with his attorney and content on her representing
him at trial.
                Appellant expresses concern his speedy trial rights were violated and the
trial court failed to consider a personally written letter he submitted to the court in
connection with his sentencing hearing. As appellant was tried within a few short months

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of his arrest, his right to a speedy trial was not infringed. And at the outset of the
sentencing hearing, the trial court expressly stated it had received and considered
appellant’s letter.
               Appellant further asks, “How is it lawful for a defendant to be found guilty
of a burglary, and at the same time be found guilty of receiving stolen property, wouldn’t
it be one or the other”? That’s a reasonable question. But because receiving stolen
property is not a lesser included offense of burglary, a defendant may be properly
convicted of both offenses. (People v. Allen (1999) 21 Cal.4th 846, 862-863.) While
dual punishment for these crimes is not permissible, the trial court correctly stayed
appellant’s sentence for receiving stolen property pursuant to the terms of Penal Code
section 654.
               Appellant’s overall sentence amounted to a 10-year prison term. Yet the
court was actually quite lenient with appellant in that it struck his prior strike conviction
and his second prison prior, resulting in five years being knocked off his sentence. There
is no basis for disturbing his sentence.
               Based on appellate counsel’s decision to file a Wende brief, appellant
requests that we grant him “an extension and/or a new court appointed appellate counsel
if need be.” But, as noted above, appellate counsel has raised a variety of claims on
appellant’s behalf in his petitions for habeas corpus, a fact that appellant fails to
acknowledge in his letter briefs. Because appellate counsel is representing appellant in a
competent and professional manner, appellant’s request for an extension or a new
attorney is denied.




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                                  DISPOSITION
            The judgment is affirmed.



                                            BEDSWORTH, ACTING P. J.

WE CONCUR:



MOORE, J.



ARONSON, J.




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