P. v. Fernandez

Filed 4/21/06 P. v. Fernandez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Gary J. Ferrari, Judge. Affirmed.

Carol S. Boyk, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________

Luis Garcia Fernandez appeals the judgment entered after conviction by jury of first degree burglary. (Pen. Code, § 459.) The trial court found Fernandez had one prior conviction within the meaning of the Three Strikes law (Pen. Code, §§ 667, subs. (b)-(i), 1170.12) and one prior conviction within the meaning of Penal Code section 667, subdivision (a). The trial court sentenced Fernandez to a term of 13 years in state prison.

We reject the claims of error raised on appeal by Fernandez and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Trial proceedings.

On August 5, 2004, at approximately 2:00 p.m., Fernandez approached Marco Aleman in front of his house on Neptune Avenue and asked if Aleman wanted to drink beer at the home of José, the brother of Aleman's sister-in-law. When they arrived at José's house, Fernandez said he was going to go next-door to his house to get beer from the refrigerator. Aleman waited at José's house for 10 to 15 minutes but Fernandez did not return. Aleman decided to return to his home and, when he arrived, he saw Fernandez's bicycle outside the house. Aleman entered the home with a shovel and found Fernandez inside his brother's bedroom looking through drawers. Aleman ordered Fernandez to leave and said he was going to call the police. However, Aleman did not have a phone line.

Immediately after Fernandez left, Aleman went to Fernandez's home to obtain an air compressor Fernandez borrowed from Aleman the day before.

Aleman's sister-in-law testified a bedroom window screen that previously had been in place was found on the ground.

On August 6, 2004, Los Angeles Police Officer Harlan Taylor went to Fernandez's home. After Taylor knocked on the door, Fernandez ran to the rear of the residence and jumped out a window.

Aleman did not mention to Taylor that he and Fernandez previously had drinks together or that, right after the alleged burglary, Aleman went to Fernandez's home to get an air compressor he previously had lent to Fernandez.

2. Motion for new trial.

Fernandez filed a motion for new trial. In support of the motion, Fernandez averred that on the day of this incident, he and Aleman both were consuming methamphetamine and alcohol at Aleman's home on Neptune Avenue. Aleman, who already owed Fernandez $40, asked Fernandez for some methamphetamine but Fernandez refused. Aleman then searched his home on Neptune Avenue for money to purchase drugs and Fernandez returned to his home. The motion asserted this evidence was newly discovered and, had it been presented at trial, would have demonstrated Aleman's lack of credibility.

The trial court denied the motion and this appeal followed.

CONTENTIONS

We appointed counsel to represent Fernandez on this appeal. After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.

Fernandez has filed a supplemental opening brief in which he contends the evidence does not support the conviction, defense counsel rendered ineffective assistance, the police failed to preserve fingerprint and footprint evidence at the scene of the crime, the trial court refused to permit privately retained counsel to try the case, and the trial court erroneously denied the motion for new trial.

DISCUSSION

1. No insufficiency of the evidence or ineffective assistance of counsel appears.

Fernandez contends Aleman was under the influence of methamphetamine at the time he reported the incident and defense counsel failed to present evidence of Aleman's methamphetamine use although counsel was aware of this information.

The fact Aleman may have been under the influence of methamphetamine at the time of the burglary does not detract from the sufficiency of the evidence. Thus, no insufficiency of the evidence appears.

Regarding the claim of ineffective assistance of counsel, there is a strong presumption on appeal that defense counsel's conduct falls within the wide range of reasonable professional assistance. Thus, a conviction will be reversed on the ground of ineffective assistance of counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission. (People v. Jones (2003) 29 Cal.4th 1229, 1254; People v. Fosselman (1983) 33 Cal.3d 572, 581.)

Here, assuming for the sake of discussion that Aleman and Fernandez did, in fact, ingest methamphetamine together prior to the burglary of the Neptune Avenue residence, defense counsel reasonably might have declined to question Aleman in this area to avoid presenting evidence that Fernandez used methamphetamine. (See People v. Williams (1997) 16 Cal.4th 153, 215.) Thus, the record reveals a reasonable tactical purpose for defense counsel's asserted omission.

In sum, Fernandez's sufficiency and ineffective assistance claims fail.

2. Failure to preserve evidence.

Fernandez contends the investigating officers failed to preserve fingerprints and footprints at the scene of the crime. This contention assumes facts not in evidence, namely, that fingerprint or footprint evidence was available.

We note defense counsel elicited that the investigators did not seek to obtain fingerprints from objects inside the Aleman home although they had the capability to do so. However, there is no duty to collect fingerprints or footprints and the record does not disclose that any potentially exculpatory evidence was destroyed. (See Arizona v. Youngblood (1988) 488 U.S. 51, 57-58 [102 L.Ed.2d 281]; California v. Trombetta (1984) 467 U.S. 479, 488-489 [81 L.Ed.2d 413].) Thus, no due process violation appears. Further, the absence of Fernandez's footprints or fingerprints would not have demonstrated his innocence. In sum, this claim of error fails.

3. The request to substitute counsel was not timely.

After Aleman testified on direct examination, Attorney E. J. Montanez appeared and indicated Fernandez's father had retained him to represent Fernandez in this matter the previous day. Montanez conceded Fernandez's father likely had been unaware the trial already had commenced. Montanez further indicated that, when Montanez first contacted the trial court, he was advised a jury already had been selected. The trial court confirmed it previously had indicated to Montanez, through the court clerk, that it would not allow substitution of counsel after the jury had been selected and opening statements had been made.^[1]

Fernandez contends the trial court demonstrated prejudice in failing to permit Montanez to try the case. Fernandez also asserts the public defender improperly failed to request a three-day continuance to permit Montanez to try the case, thereby interfering with Fernandez's right to counsel.

No error appears in the trial court's refusal to permit Fernandez to substitute counsel after the trial had commenced. Clearly, Fernandez's request to substitute counsel after the jury had been selected was untimely and would have caused significant disruption of the proceedings. (See People v. Turner (1992) 7 Cal.App.4th 913, 918-919; People v. Lau (1986) 177 Cal.App.3d 473, 478- 479.) Nor can defense counsel be faulted for failing to seek a three-day continuance. Under the circumstances, such a request would have been futile.

4. The trial court properly denied the motion for new trial.

Fernandez contends the trial court erroneously denied the motion for new trial. According to Fernandez, the motion demonstrated new evidence that would have shown Aleman lacked credibility. As noted above, in support of the motion, Fernandez averred he and Aleman both were consuming methamphetamine and alcohol at Aleman's home and, when Fernandez refused to give Aleman free methamphetamine, Aleman ransacked the residence looking for money.

Clearly, this evidence was not newly discovered in that these asserted facts were known to Fernandez at the time of trial. Thus, it would have been an abuse of discretion to grant a new trial on the showing made. (See Pen. Code, § 1181; People v. Beeler (1995) 9 Cal.4th 953, 1004.)

5. Review of the record.

We have examined the entire record and are satisfied Fernandez's counsel has complied fully with counsel's responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

KITCHING, J.

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^[1] After Fernandez was convicted, Montanez filed the motion for new trial and represented Fernandez at sentencing.