Filed 10/9/13 P. v. Roosevelt 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G047836

         v.                                                            (Super. Ct. No. 12WF1299)

ANTWAIN ARNETTE ROOSEVELT,                                             OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Gregg L.
Prickett, Judge. Affirmed as modified.
                   Julie Sullwold, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   No appearance for Plaintiff and Respondent.
                                             *               *               *
              Defendant Antwain Arnette Roosevelt filed a notice of appeal after a jury
convicted him of four counts of second degree commercial burglary (Pen. Code, § 459-
460; all statutory references are to the Penal Code unless otherwise modified) and the
trial court found two prior prison term allegations to be true (§ 667.5, subd. (b)). His
appointed counsel filed a brief summarizing the case, but advised this court she found no
issues to support an appeal. At our invitation, Roosevelt filed a written brief on his own
behalf. After considering his brief and conducting an independent review of the record
under People v. Wende (1979) 25 Cal.3d 436, we affirm the judgment as modified.
                                           FACTS
              On April 25, 2012, around 6:30 p.m., a surveillance video showed
Roosevelt walking into the restricted employee-only area at the rear of an Albertson’s
grocery store in Fountain Valley. He reached into a locked, chain-link liquor cage and
removed two bottles, placed them in his pants and returned to the store. He then bought a
soda before departing. Ryan Painter, Albertson’s loss prevention employee, later
determined six bottles of Martini & Rossi, worth approximately $90, were missing.
              A few hours later, a video camera showed Roosevelt entering a Costa Mesa
Albertson’s store. Roosevelt again walked to the liquor cage area. An employee told
him to leave, but he returned a few minutes later. He hid for a time, and then approached
the cage. The next morning, Enrique Avila, the liquor supervisor, noticed empty boxes of
expensive liquor outside the cage. Avila inventoried the liquor and determined five
bottles, valued at $557, were missing.
              On April 29, 2012, around 9:00 p.m., Gilbert Sandoval, a loss prevention
employee at a Huntington Beach Albertson’s store spotted Roosevelt in the employee-
only back room receiving area. When Sandoval directed another employee to notify the
police, Roosevelt left the store. Surveillance video showed Roosevelt in the liquor aisle
“fiddling with” the locked case that “contained [] high-end liquor.” Roosevelt removed



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two bottles, each valued at $54, and placed them outside the locked case before walking
to the employee-only area.
              About 20 minutes later, surveillance video showed Roosevelt in the liquor
aisle at the Fountain Valley Albertson’s store. Painter later ascertained a bottle of
Hennessy XO, worth about $180, was missing.
              On May 24, 2012, Seal Beach Detective Gary Krogman interviewed
Roosevelt, who admitted he was the person depicted in Albertson’s surveillance videos.
Krogman did not ask Roosevelt specifically about any of the thefts, but Roosevelt
conceded he “may” have stolen things in the past and suggested he was intoxicated
during the incidents. Roosevelt wore baggie shorts with many pockets and explained
“when he went into stores to steal, he would stick [the items] in his pockets.” Roosevelt
also stated he used to work at Albertson’s and it was impossible to reach into a liquor
cage and remove alcohol.
              A jury convicted Roosevelt of the four charged burglary offenses.
Roosevelt waived a jury on the two prior prison term allegations (§ 667.5, subd. (b)), and
the trial court found them to be true. At the sentencing hearing in December 2012, the
trial court found probation was not appropriate and imposed the upper three-year term for
one of the burglary counts, finding factors in aggravation outweighed those in mitigation.
The court added consecutive eight-month terms for the remaining three burglaries, and
two consecutive one-year terms for the prison term enhancements, for a total sentence of
seven years. The trial court suspended one year of the sentence as a split sentence so
Roosevelt could attend a drug program. The trial court credited Roosevelt with 109 days
of actual custody, and 109 days of conduct credit, and imposed various fines, fees, and
assessments, including a $4,800 restitution fine. (§ 1202.4, subd. (b)(2).) The trial court
also ordered him to pay Albertson’s $2,200 in restitution, and recommended Roosevelt
“not be subject to any alternative release program, work release, county parole, county
probation during the time of his incarceration.”

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                                     POTENTIAL ISSUES
              Roosevelt’s appellate lawyer identifies the following potential issues for
our consideration: (1) whether the trial court accurately calculated Roosevelt’s custody
credits; (2) whether the court erred in denying Roosevelt’s Marsden motions;
(3) whether the court erred in denying Roosevelt’s Faretta motion; (4) whether the court
erred in failing to refer Roosevelt to the California Rehabilitation Center; (5) whether the
court erred in partially denying Roosevelt’s motion for return of property; (6) whether the
prosecutor committed misconduct in arguing the defense could have played the audiotape
of the interview between Krogman and Roosevelt; (7) whether the court erred in ordering
$2,200 in restitution to Albertson’s; and (8) under the new sentencing law, whether
Roosevelt was entitled to work release, home confinement, a split sentence or other relief.
              Roosevelt has personally submitted supplemental briefs filed September 3,
2013 and September 18, 2013. In the September 3 brief, he contends: (1) the trial court
“left out a couple of details” when instructing the jury concerning burglary; (2) his
current confinement in a 22-hour lockdown facility at the Orange County Central Jail
violated his right to attend various programs; (3) the trial court abused its discretion by
imposing the maximum sentence on every count, running his sentence consecutively, and
depriving him of work release programs, split sentencing, and home confinement; (4) the
court erred when it failed to place him in the Delancey Street drug program for the
remainder of his custody time; (5) the court failed to act impartially by allowing the
prosecutor to commit misconduct by whispering in witness Sandoval’s ear and
influencing his testimony; (6) the jury was not impartial because one of the jurors worked
for Albertson’s or for a company that represents union members who worked for the
store; (7) trial counsel rendered ineffective assistance by failing to (a) adequately
investigate the case and interview key alibi witnesses and victims, (b) request a lineup,
(c) “object to a lesser charge,” and (d) investigate or present a mental state defense based
on voluntary intoxication. He complains trial counsel’s body language displayed “racial

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prejudice, bias, and unprofessional[ism]” and counsel failed to object to the prosecutor’s
misconduct with Sandoval. Roosevelt also argues (8) the trial judge displayed disrespect,
“racial prejudice [and] bias” toward Roosevelt, his children and family; (9) the trial court
coached the prosecutor on how to obtain a conviction and word things for the jury; (10)
he was deprived of his “rights to know what” he was “actually charge[d] with;” (11) the
identification evidence was flawed and there is insufficient evidence to sustain the
convictions; and (12) Officer Krogman lied when he testified Roosevelt admitted he was
depicted in the photos and worked for Albertson’s.
              In the September 18 brief, he complains of prosecutorial misconduct during
closing argument and racial profiling. He also complains a car search violated his Fourth
Amendment rights.


Custody Credits
              According to the court’s minutes, the police arrested Roosevelt May 24,
2012. Roosevelt posted bail on July 3, 2012. On July 26, defense counsel advised the
court Roosevelt was in custody outside of Orange County. The court exonerated the
bond, set bail at $100,000, and issued a bench warrant. The sheriff served the warrant on
September 24. Roosevelt posted bail again on November 5, 2012. The trial court
remanded Roosevelt into custody after the verdict on November 21, 2012, and the court
sentenced him on December 21, 2012. It appears from our review of the minutes that
Roosevelt spent 115 days in actual custody between his arrest on the current charges and
sentencing, and is entitled to an additional six days of custody credit and another six days
of conduct credit. We modify the judgment accordingly.


Marsden
              On October 26, 2012, the court (Judge King) conducted a hearing per
People v. Marsden (1970) 2 Cal.3d 118. The court entertained Roosevelt’s concerns

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about appointed trial counsel. Counsel addressed her background and experience,
explained her efforts on Roosevelt’s behalf, and responded to his specific grievances.
We discern no arguable issue concerning the court’s denial of his motion to discharge
appointed counsel. On November 19, 2012, the trial court (Judge Prickett) conducted
two additional Marsden hearings. We have reviewed the transcripts of those hearings.
Again, we discern no arguable issue concerning the court’s denial of these motions to
discharge appointed counsel.


Faretta
              On November 19, 2012, the first day of trial, the court also addressed
whether Roosevelt desired to represent himself. (Faretta v. California (1975) 422 U.S.
806.) The record reflects Roosevelt equivocated on whether he wanted to represent
himself, and requested more time to prepare. The court refused to grant him a
continuance, and denied his Faretta request without prejudice as untimely. No arguable
issue exists concerning the court’s denial of Roosevelt’s request for self-representation.


California Rehabilitation Center
              No arguable issue exists on whether the court should have referred
Roosevelt to the California Rehabilitation Center. (See Welf. & Inst. Code, § 3051, subd.
(d) [“Commencing July 1, 2012, no new commitments may be made pursuant to this
section”].)


Motion for Return of Property
              The clerk’s transcript contains a written order reflecting the court ordered
authorization to return to Roosevelt three cartons of cigarettes and a 20-ounce container
of orange soda. The court denied return of 19 bottles of various brands of liquor. (See
Gershenhorn v. Superior Court (1964) 227 Cal.App.2d 361, 364-365 [defendant may

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bring a motion for return of property seized that was not introduced into evidence but
remained in possession of the seizing officer]; § 1407 et seq. [police may hold allegedly
stolen property pending satisfactory proof of ownership and reasonable notice and
opportunity to be heard].)
                The reporter’s transcript reflects that after sentencing Roosevelt, the court
stated “[t]here is a request for the return of property. The court will grant it as to items 1
and 2, will deny it as to items 3 through 21.” The court’s minutes reflect the order was
signed and filed after rendition of judgment. Roosevelt’s notice of appeal does not
separately address this order. In any event, our record contains no motion, opposition, or
discussion concerning the motion to return the alcohol at issue, nor an objection to the
order. We conclude the record is inadequate to demonstrate an arguable issue on appeal.


Prosecutor’s Argument Concerning Audiotape of Defendant’s Police Interview
                Defense counsel stated during closing argument that it was difficult to
verify Detective Krogman’s claim Roosevelt was evasive during their interview because
“you can’t listen to the interview even though it’s recorded. So we’re sort of going off of
what the officer’s rendition of it was.” Counsel also stated “since we’re not there in that
interrogation room, we don’t know how this went down. It’s just this officer saying
this . . . .”
                During rebuttal argument, the prosecutor stated, “There is an audiotape
recording of that. Don’t you think just reasonably that [the] . . . defense would have
played that for you? You know, the law says I don’t have to play every single piece of
evidence. . . . [¶] If that was the case [that playing it was not waste of time], wouldn’t
you have heard it from [defense counsel]? Wouldn’t she have played portions of the tape
. . . that says hey, listen to you, don’t you feel you’re forcing an answer out of him? . . .
Why? Because this is exactly what you’re picturing in your mind, the exact picture



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painted to you by Detective Krogman, an individual who was caught red handed like a rat
in a trap scurrying to say everything and anything he could to get out of trouble.”
              A prosecutor may comment on the state of the evidence or on the
defendant’s failure to call logical witnesses, introduce material evidence, or rebut the
prosecution’s case. (People v. Medina (1995) 11 Cal.4th 694, 755; cf. People v.
Bradford (1997) 15 Cal.4th 1229, 1340 [prosecutor may not suggest that “a defendant has
a duty or burden to produce evidence, or a duty or burden to prove his or her
innocence”].) We discern no arguable issue concerning the prosecutor’s rebuttal
argument.


Victim Restitution
              The probation report states, “Kim Sempson [Albertson’s regional loss
prevention supervisor] indicated Albertsons sustained more than $2,200 in financial
losses as a result of the defendant’s actions.” Section 1202.4 provides, “(a)(1) It is the
intent of the Legislature that a victim of crime who incurs an economic loss as a result of
the commission of a crime shall receive restitution directly from a defendant convicted of
that crime, “ and “(3) The court, in addition to any other penalty provided or imposed
under the law, shall order the defendant to pay . . . [¶] (B) Restitution to the victim or
victims, if any, in accordance with subdivision (f), which shall be enforceable as if the
order were a civil judgment.”
              Section 1202.4, 2ubdivision (f) provides, “in every case in which a victim
has suffered economic loss as a result of the defendant’s conduct, the court shall require
that the defendant make restitution to the victim or victims in an amount established by
court order, based on the amount of loss claimed by the victim or victims or any other
showing to the court. . . . The court shall order full restitution unless it finds compelling
and extraordinary reasons for not doing so and states them on the record.” A corporation



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may be a direct victim of a crime. (§ 1202.4, subd. (k)(2).) Accordingly, the trial court
entered a restitution order for $2,200.
              The defendant “has the right to a hearing before a judge to dispute the
determination of the amount of restitution. The court may modify the amount, on its own
motion or on the motion of the district attorney, the victim or victims, or the defendant.
If a motion is made for modification of a restitution order, the victim shall be notified of
that motion at least 10 days prior to the proceeding held to decide the motion.”
(§ 1202.4, subd. (f)(1).)
              Because Roosevelt did not object to the restitution order, dispute the
amount of restitution, or request a hearing, no arguable issue exists on appeal.


Section 1170, subdivision (h)(5)
              Section 1170 provides, “(5) The court, when imposing a sentence . . . may
commit the defendant to county jail as follows: (A) For a full term in custody as
determined in accordance with the applicable sentencing law. (B)(i) For a term as
determined in accordance with the applicable sentencing law, but suspend execution of a
concluding portion of the term selected in the court’s discretion, during which time the
defendant shall be supervised by the county probation officer in accordance with the
terms, conditions, and procedures generally applicable to persons placed on probation, for
the remaining unserved portion of the sentence imposed by the court.”
              The court did not grant Roosevelt’s request for community service or
“alternative custody program,” even though Roosevelt claimed he was “a primary
caregiver” of his children. The court instead recommended Roosevelt “not be subject to
any alternative release program, work release, county parole, county probation during the
time of his incarceration.” The court, however, imposed a split sentence to allow
Roosevelt to enroll in residential alcohol or drug treatment after completion of the jail
portion of his sentence. The trial court properly exercised its sentencing discretion.

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Consequently, no arguable issue exists to support an appeal. (See § 1203.016, subd. (e)
[at sentencing or at any time that the court deems it necessary, the court may restrict or
deny the defendant’s participation in a home detention program].)


Burglary Instructions
                Roosevelt contends the trial court “left out a couple of details” when
instructing the jury concerning burglary. The court provided CALCRIM No. 1700,
which defined the elements of burglary. That instruction placed the burden on the
prosecution to prove defendant entered a commercial building and intended to commit
theft when he entered. Roosevelt notes the instruction did not specify “entry” includes
entry by “an object under [the defendant’s] control.” There was no evidence Roosevelt
used an object to gain entry, and therefore no issue exists concerning the burglary
instructions.


Conditions of Confinement
                Roosevelt complains he is currently confined in a 22-hour lockdown
facility at the Orange County Central Jail, and this deprives him of programs, including
school and substance abuse classes. Roosevelt’s conditions of confinement are not
cognizable on appeal from the judgment of conviction.


Abuse of Sentencing Discretion
                Roosevelt argues the trial court abused its discretion by imposing the
maximum sentence, running his sentence consecutively, and depriving him of work
release programs, split sentencing, and home confinement. The record supports the trial
court’s stated reasons for its sentencing choices. Accordingly, no basis exists to support
an appeal regarding the sentence.



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Drug Program
              Roosevelt also contends he should be placed in the Delancey Street drug
program for the remainder of his custody time. As noted, the court did split Roosevelt’s
sentence to allow him to enroll in a program at the end of his custody time.


Sandoval’s Testimony
              Roosevelt complains the trial court failed to act impartially by allowing the
prosecutor to commit misconduct by whispering in witness Sandoval’s ear to influence
his testimony. Sandoval was the loss prevention specialist at the Huntington Beach
Albertson’s store who confronted Roosevelt in the employee-only area on April 29.
Before trial, the court granted the defense’s motion to exclude references to bulletins
generated by Albertson’s concerning theft incidents in Orange, Riverside, and San
Bernardino Counties unrelated to the charged incidents. Defense counsel expressed
concern that Albertson’s employees had stated the person in the videos looked “like
somebody from another video in another Albertsons in another county.” The prosecutor
stated she would discuss the matter with her witnesses. We have reviewed Sandoval’s
testimony. Defense counsel did not object to any whispering. At one point, the
prosecutor apparently approached Sandoval after Sandoval testified he “immediately
recognized the subject [Roosevelt].” It is likely the prosecutor advised Sandoval about
the court’s pretrial ruling not to mention he recognized Roosevelt from the bulletins or
other information obtained from the uncharged incidents. The record does not
demonstrate the court or prosecutor acted improperly to influence Sandoval’s testimony.
We perceive no arguable issue.




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Juror Impartiality
              Roosevelt complains one of the jurors worked for Albertson’s or for a
company that represents union members who worked for the store. Our record does not
contain a transcript of the jury voir dire. The court’s minutes do not reflect an objection
to any juror on this basis however. We discern no arguable issue.


Ineffective Assistance by Trial Counsel
              Roosevelt argues trial counsel rendered ineffective assistance by failing to
adequately investigate the case and interview key witnesses, to request a lineup, to
request a lesser charge, and to investigate or present a mental state defense based on
voluntary intoxication. He also complains trial counsel’s body language displayed “racial
prejudice, bias, and unprofessional[ism]” before trial and during trial, he did not feel
counsel acted in his best interests, she wanted him to take a deal because she said he was
going to lose at trial, and she did not present any defense at trial. He also complains
counsel failed to object to the prosecutor’s misconduct with Sandoval. Nothing in the
appellate record supports the charges leveled at trial counsel. We perceive no grounds to
argue trial counsel provided ineffective representation. (See Strickland v. Washington
(1984) 466 U.S. 668.)


Trial Judge Bias
              Roosevelt contends the trial judge was biased against him and his family,
and denied him a constitutionally fair trial. He cites the court’s minutes from November
19, 2012, that reflect the court “held [a] hearing regarding the children of the defendant
sleeping in the courtroom.” He also complains about the judge’s body language and
states the court “said and [did] a lot of wrongful things off record.” He states the judge
told the prosecutor “how to convict[]” him and word things for the jury, although “[m]ost
of this misconduct took place off record.” He says the trial judge “denied everything [he]

                                             12
requested” because Roosevelt wanted a trial, and gave him the maximum sentence.
Nothing in the appellate record supports Roosevelt’s complaints the trial court was biased
against him. These baseless charges present no arguable issue.


Notice of Charges
              Roosevelt states he was deprived of the right “to know what [he was]
actually charge[d] with.” The clerk’s transcript contains the complaint, preliminary
hearing transcript, and the information. The record shows Roosevelt had knowledge of
the charges against him.


Sufficiency of the Evidence
              Roosevelt challenges the sufficiency of the evidence to support the
judgment, and emphasizes he was not arrested at any of the stores he was charged with
burglarizing, he had no contact with the loss prevention officers who testified, he was not
identified from a physical lineup, photo lineup, or show up, and police officers who saw
the surveillance video and testified at the preliminary hearing described the “subject as a
different race, height, weight, and wearing different clothing.” We have summarized the
evidence above, which supports the jury’s guilty verdicts. (Jackson v. Virginia (1979)
443 U.S. 307, 318-319; People v. Johnson (1980) 26 Cal.3d 557, 576-578.)


Officer Krogman’s Testimony
              Roosevelt states Detective Krogman “lied to [the] court” when he testified
Roosevelt admitted he was depicted in the Albertson’s photos and stated he worked for
Albertson’s. We have recounted Krogman’s testimony above. Roosevelt refers to
Krogman’s alleged statements during the interview that are not contained in the appellate
record. We decline Roosevelt’s invitation to listen to the audiotape that was not received
into evidence. Nothing in the record supports Roosevelt’s claim.

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Prosecutor’s Closing Argument
              Roosevelt complains the prosecutor committed misconduct by making
factual arguments concerning the crimes that were not supported by the evidence and
impermissibly giving her personal opinions. He also objects the prosecutor described
him as acting like a “professional thief,” and complains the loss prevention officer and
prosecutor engaged in racial profiling. We have reviewed the surveillance video and the
portions of the reporter’s transcript Roosevelt cites, and discern no arguable issue
concerning any misstatement or misconduct by the prosecutor. Nor do we discern any
racial profiling, or “coercion” of prosecution witnesses.


Vehicle Search
              Roosevelt complains the police had no probable cause and violated the
Fourth Amendment by approaching his wife, who was sleeping in a vehicle in a CVS
parking lot, and searching the car to find 33 bottles of unopened liquor. This apparently
relates to events of May 24, 2012, in Seal Beach. Evidence relating to this incident was
not admitted at Roosevelt’s trial. We discern no arguable issue that police violated
Roosevelt’s Fourth Amendment rights.
              Other than the apparent miscalculation of credits, we discern no arguable
issues from counsel’s brief, Roosevelt’s letter briefs, or in our independent review of the
record.


                                       DISPOSITION
              The judgment is modified (§ 1260) to reflect defendant served 115 days in
actual custody before sentencing and earned 115 days of conduct credit, for a total
presentence credit of 230 days. The trial court is directed to prepare an amended abstract



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of judgment and forward it to the appropriate authorities. In all other respects, the
judgment is affirmed.



                                                  ARONSON, J.

WE CONCUR:



MOORE, ACTING P. J.



IKOLA, J.




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