Filed 3/21/17 P. v. Cisneros 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v.

JOSE ROBERTO CISNEROS,

Defendant and Appellant.


G053556

(Super. Ct. No. 15CF1613)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, John Dorsey Conley, Judge. Affirmed.
Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.

* * *
A jury convicted defendant Jose Roberto Cisneros of first degree residential burglary (Pen. Code, §§ 459, 460, subd. (a)) and found true that a nonaccomplice was present during the burglary (§ 667.5, subd. (c)(21)). Defendant admitted a prior serious felony conviction for which he had served a prison term. (§§ 667, 667.5, subd. (b), 1170.12.) After considering the probation officer’s report, the court denied defendant’s motion to strike his prior strike and sentenced him to prison for 13 years.
Defendant appealed the judgment and we appointed counsel to represent him. Counsel did not argue against defendant, but advised he was unable to find an issue to argue on defendant’s behalf. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was given an opportunity to file written argument on his own behalf, but he did not do so.

FACTS

Prosecution
Miguel Gomez (who was 26 years old at the time of trial) was asleep in his bedroom in the middle of the night when he awoke to a man standing over him and tapping on his groin. Although the bedroom was dark, Gomez was able to get a good look at the man’s face. Gomez was scared, told the man to get out of the house, and yelled for his brother and father, who also lived in the house. The man fled through a sliding door.
Around 6 a.m., Gomez noticed his cell phone was missing; it had been next to his pillow. Gomez reported the incident to the police. He used a cell phone application to track his phone. Based on the application, an officer went to an area about a half mile away, where he contacted defendant, who matched Gomez’s description of the intruder. The officer searched defendant and found a cell phone in his pocket.
The officer brought defendant to Gomez’s house, where Gomez identified defendant as the person who came into the home and stole his cell phone. Gomez also identified the cell phone as his. Gomez also identified defendant at trial.

Defense
Defendant testified he was walking to a bus stop when Vega approached him and gave him a phone and a backpack to take care of until Vega returned. (Vega is a man who stayed around the Santa Ana Civic Center area and whom defendant had met while hanging out with friends.) About 15 minutes later, officers contacted defendant as he was walking and looking to see if Vega was returning. Defendant denied entering Gomez’s room or taking his cell phone.
Dr. Robert Shomer, a psychologist and an expert in eyewitness identification, explained that identification of strangers is not highly reliable and can be affected by factors such as unexpected stress and lighting conditions. The in-field show up procedure has been labeled inherently suggestive.

DISCUSSION

To assist with our independent review of the record, counsel suggests we consider whether “the prosecutor committed misconduct by focusing on the nature of [defendant’s] prior conviction as theft-related and suggesting [it] showed a propensity to commit the instant offense, despite the trial court’s admonishment not to do so.”
Upon our independent review of the entire record, including consideration of the issue suggested by counsel, we are unable to find an arguable appellate issue. (People v. Wende, supra, 25 Cal.3d 436.)

DISPOSITION

The judgment is affirmed.




IKOLA, J.

WE CONCUR:



MOORE, ACTING P. J.



FYBEL, J.