Filed 7/11/14 P. v. Mendoza CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D064586
Plaintiff and Respondent,
v. (Super. Ct. No. SCD245314)
ALFREDO MENDOZA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Louis R.
Hanoian, Judge. Affirmed.
Kleven McGann Law and Sarah Kleven McGann, under appointment by the Court
of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
The prosecution charged Alfredo Mendoza with one count of receiving stolen
property (Pen. Code, § 496, subd. (a))1 and one count of grand theft of personal property
(§ 487, subd. (a).) The jury could not reach a verdict on the grand theft charge, but found
Mendoza guilty of the receiving stolen property charge. Mendoza also admitted having
two prior strike convictions (§§ 667, subd. (b)-(i), 1170.12) and two prior prison
commitment convictions (§ 667.5, subd. (b)).
After it declined Mendoza's invitation to dismiss the prior strike convictions for
sentencing purposes, the court sentenced him to an aggregate term of four years and eight
months in prison. The term consisted of sixteen months for the receiving stolen property
conviction, doubled because of the prior strike convictions, plus one year for each of the
prior prison commitment convictions.2
Mendoza appeals. His appointed appellate counsel filed a brief requesting we
independently review the record for error. (See People v. Wende (1979) 25 Cal.3d 436,
441-442.) In addition, we granted Mendoza permission to file a brief on his own behalf.
He submitted a brief posing six questions for this court's consideration.
Having reviewed the record and considered the questions posed by Mendoza, we
conclude there are no reasonably arguable appellate issues and affirm the judgment.
1 Further statutory references are also to the Penal Code unless otherwise stated.
2 The court also sentenced him to a consecutive term of 16 months in prison for a
separate case, in which he pleaded guilty to possessing a dirk or dagger. The separate
case is not at issue in this appeal.
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BACKGROUND
Trial Evidence
Prosecution Evidence
On Christmas night, a biologist parked her car in her driveway and neglected to
lock the door. She left several items in her car, including a checkbook, some CDs, and a
backpack containing binoculars, a portable weather station, and a birding guide.
The morning after Christmas Day, John Rains saw a man trying to break into a
car. The man stood on the car's running board and looked into the car. He then tried
unsuccessfully to break the front window with his fist.
Rains called 911 and reported the man's activity. He described the man as a
young, light-skinned African-American man. The man wore black pants and a gray
hooded sweatshirt. He had a gray, black and red backpack on his back. He also had a
black BMX bicycle. At trial, Rains identified Mendoza as the man.
A police officer responding to Rains' 911 call encountered Mendoza and stopped
him because he matched the description Rains provided. Mendoza told the officer his ex-
girlfriend was cheating on him and he was looking for her vehicle in the area. When the
officer informed Mendoza that someone matching Mendoza's description was seen
checking the door handles of cars, Mendoza said he might have checked a few door
handles while looking for his ex-girlfriend's car.
The officer performed a consensual search of Mendoza. Mendoza did not have
any burglary tools or other tools on him; however, he had a red, gray and black backpack
containing binoculars, a portable weather station, a birding guide, the biologist's
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checkbook and other items. The biologist, who lived approximately six blocks away,
later identified the backpack and the items in it as hers. She did not give Mendoza or
anyone else permission to take anything from her car.
Defense Evidence
Mendoza's ex-girlfriend testified she argued with Mendoza on Christmas Day and
he left their home. She then went to a nearby bar, where she met another man whom she
invited home with her to smoke methamphetamine. She did not remember the man's
name or anything else about him except that he was Hispanic and carried a backpack with
him. When she got home, she packed up Mendoza's belongings into a regular backpack,
a rolling backpack, and a laundry bag she had in the home. With the other man's
assistance, she placed Mendoza's belongings by the door. At some point Mendoza
returned home. She told him she did not want him there any longer and she threw his
belongings at him while he remained at the door. She did not remember whether she also
threw the other man's backpack to Mendoza; however, the other man came to her home
the next day asking for his backpack.
Mendoza's girlfriend never told anyone about the potential backpack mix-up until
Mendoza's case was sent out for trial. Mendoza's girlfriend had two prior convictions for
petty thefts. Mendoza was with her when both thefts occurred and each time she told
police he had no idea she had stolen anything.
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Trial Procedures
Juror Pre-Deliberation Encounter with Mendoza
After the close of evidence and before instruction and argument, one of the jurors
saw a bailiff escorting Mendoza. Mendoza was in waist chains and handcuffs at the time.
Defense counsel opted not to question the juror or otherwise call attention to the matter
because the encounter was brief and the jury already knew Mendoza was in custody
because Mendoza's girlfriend had testified she had visited Mendoza in jail while he
awaited trial.
Jury Instruction on Prohibition Against Dual Conviction
Among the court's instructions to the jury was CALCRIM No. 3516, which
informed the jury: "The defendant is charged in Count 2 with theft and in Count 1 with
receiving stolen property. You must first decide whether the defendant is guilty of theft.
If you find the defendant guilty of theft, you must return the verdict form for receiving
stolen property unsigned. If you find the defendant not guilty of theft[,] you must then
decide whether the defendant is guilty of receiving stolen property."
Jury Deliberations
During its deliberations, the jury sent a note to the court asking, "If we find the
defendant guilty of receiving stolen property, [d]o we need to give a verdict on theft? [¶]
We cannot come to a decision on theft?" The court responded, "You may return a verdict
for Count 1, receiving stolen property, without reaching a verdict on Count 2[,] theft."
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DISCUSSION
Appointed appellate counsel filed a brief summarizing the facts and proceedings
below. Counsel presented no argument for reversal and instead requested we review the
record for error as mandated by People v. Wende, supra, 25 Cal.3d at pages 441-442. To
aid our review, counsel identified seven possible, but not reasonably arguable issues (see
Anders v. California (1967) 386 U.S. 738, 744) (Anders issues)). These issues were: (1)
Was it error for the state to pursue two alternative charges at trial? (2) Was there
sufficient evidence to convict Mendoza of receiving stolen property? (3) Was Mendoza
deprived of effective assistance of counsel because his trial counsel failed to have him
testify on his own behalf? (4) Did the court err by instructing the jury under CALCRIM
No. 3516 to consider the theft charge before considering the receipt of stolen property
charge? (5) Did Mendoza possess the stolen property for a sufficient amount of time to be
found guilty of receiving stolen property? (6) Was Mendoza prejudiced by the fact a juror
saw him in shackles during the trial? (7) Did the court abuse its discretion by declining
Mendoza's invitation to dismiss Mendoza's prior strike convictions for sentencing
purposes?
Mendoza filed a brief on his own behalf posing six questions, many of which
overlap the Anders issues identify by appellate counsel. Mendoza's questions were: (1)
Was it legal to detain and arrest him? (2) Was there sufficient evidence to convict him of
receiving stolen property? (3) Did Rains mislead police and the jury about a man
breaking into vehicles? (4) Was it legal for the prosecutor to charge him with both
receiving and stealing the same property? (5) Did the jury fully understand the jury
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instructions? (6) Did his trial counsel provide ineffective assistance by failing to have
him testify on his own behalf?
We have considered the Anders issues and the questions posed by counsel and
conclude none of them is reasonably arguable. The prosecution was not precluded from
alternatively charging theft and receiving stolen property. (See People v. Ceja (2010) 49
Cal.4th 1, 10.) The court did not err in giving the CALCRIM No. 3516 instruction.
(People v. Ceja, supra, p. 10.) Regardless of the length of time Mendoza possessed the
backpack, there was no dispute it and the items in it were stolen and there was sufficient
evidence Mendoza knew they were stolen. (People v. Boinus (1957) 153 Cal.App.2d
618, 622.) The record does not show Mendoza was prejudiced because a juror briefly
saw him in waist restraints and handcuffs. (People v. Tuilaepa (1992) 4 Cal.4th 569,
584-585.) The court's decision to decline Mendoza's invitation to dismiss his prior strike
convictions for sentencing purposes was not "so irrational or arbitrary that no reasonable
person could agree with it." (People v. Carmony (2004) 33 Cal.4th 367, 377.) The
record does not show Mendoza's detention and arrest were constitutionally unreasonable.
(People v. Hernandez (2008) 45 Cal.4th 295, 299.) We do not reevaluate a witness's
credibility. Resolution of conflicts and inconsistencies in witness testimony is the
exclusive province of the jury. (People v. Young (2005) 34 Cal.4th 1149, 1181.) The
record does not show Mendoza was prejudiced by any confusion the jury may have had
about any of the jury instructions. (People v. Rivas (2013) 214 Cal.App.4th 1410, 1429.)
The ineffective assistance of counsel claim cannot be resolved on the present record.
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(People v. Kelly (2006) 40 Cal.4th 106, 121, fn. 4, 126; People v. Mendoza Tello (1997)
15 Cal.4th 264, 267.)
As requested by counsel, we independently reviewed the record and we also did
not identify any reasonably arguable issues. Mendoza has been competently represented
by counsel in this appeal.
DISPOSITION
The judgment is affirmed.
MCCONNELL, P. J.
WE CONCUR:
BENKE, J.
MCDONALD, J.
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