Filed 2/28/18 P. v. Orejel-Valencia CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sutter)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE CARLOS OREJEL-VALENCIA,

Defendant and Appellant.
C083417

(Super. Ct. No. CRF161019)




Following a jury trial, defendant Jose Carlos Orejel-Valencia was convicted of attempted first degree burglary and sentenced to three years’ probation. On appeal, he contends he was denied his constitutional right to effective assistance of counsel by his trial counsel’s failure to request a claim-of-right instruction, and asserts there is insufficient evidence that he intended to take the property of another. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On April 24, 2016, two men, later identified as defendant and co-defendant, Kaleb Zeno, were seen using a metal bar to gain entry into the home of Crystal and Matthew Lewis. Crystal knew defendant through a mutual friend and knew both defendant and Zeno as friends of her husband and son. On multiple previous occasions, Crystal told defendant and Zeno to stay away from her home.
Prior to April 24, 2016, defendant left his laser pointer with Matthew for repair. About a week before, Matthew told defendant his laser pointer was repaired and defendant could pick it up. Neither defendant nor his co-defendant had phones, and instead would communicate with Matthew by dropping by his house. On April 24, 2016, neither Crystal nor Matthew had given defendant or Zeno permission to enter their home or permission to pry open a window or the garage.
The neighbor who witnessed two men using a metal bar to force open the front window of the Lewises’ home called the sheriff’s department and remained on the line until officers arrived. The two men took turns stepping on a stool, inserting the metal bar into the window, and attempting to pry it open. The neighbor then witnessed them using the metal bar to force open the garage door, before again attempting to force open the front window. A responding officer recalled that the neighbor told him he saw two men carrying a tool and trying to pry open a window to the home. The neighbor was unsure whether the two men were trying to pry open the window with the tool or with their hands. The neighbor did not mention to the officers that he saw the two men trying to pry open the garage door.
When the officers arrived at the Lewises’ home, defendant and Zeno were sitting on the front porch of the house. A lug wrench was found inches behind defendant. Defendant told the officers the lug wrench was on the porch when they arrived at the home. At trial, Crystal testified that someone had previously left a tire iron at her home, but did not know who left it. Defendant and Zeno were arrested. Defendant was wearing a hat with a beanie underneath, which pulled down to reveal a Chewbacca face-mask. Zeno was wearing black latex gloves and carrying a backpack containing numerous items that could be used to break into a home.
Crystal, who was out shopping at the time, returned to her home after receiving a call from the officers. Upon returning home, she informed officers one of the front windows, which was open when the officers observed it, was closed when she left. Crystal found no new “nicks or scratches” on either her front window or garage.
At trial, defendant acknowledged everything needed to conduct a burglary was within Zeno’s backpack, but neither individual used any of it. Defendant was at the Lewises’ home to recover his own property from within the home. Further, defendant asserts because Zeno previously stayed at the house, he knew the back door to the home did not lock. Defendant argued he had no intention of committing burglary.
Defendant and Zeno were charged with attempted first degree burglary, in violation of Penal Code sections 664 and 459. Both entered pleas of not guilty. The jury was instructed to “separately consider the evidence as it applies to each defendant” and that it “must decide each charge for each defendant separately.” The jury found both defendants guilty as charged. The court sentenced defendant to three years’ probation.
DISCUSSION
Defendant first contends his Sixth Amendment right to effective counsel was violated when his trial lawyer failed to request a claim-of-right jury instruction that provided a complete defense to the crime. Defendant also argues there was insufficient evidence he had the required criminal intent.
I
Ineffective Assistance of Counsel
To establish a claim of ineffective assistance of counsel, defendant must prove that (1) trial counsel’s representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency resulted in prejudice to defendant, meaning there “is a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.” (People v. Mai (2013) 57 Cal.4th 986, 1009; see People v. Williams (1997) 16 Cal.4th 153, 215; Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693-694].) “ ‘ “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” ’ ” (People v. Avena (1996) 13 Cal.4th 394, 418.) If defendant makes an insufficient showing on either of these components, his ineffective assistance claim fails. (People v. Holt (1997) 15 Cal.4th 619, 703; see Strickland, supra, at p. 687.)
Where, as here, the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, then the judgment must be affirmed unless counsel was asked for an explanation and failed to provide one or there could simply be no satisfactory explanation. (People v. Pope (1979) 23 Cal.3d 412, 426, disapproved on another ground as stated in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.)
The defendant “ ‘ “must overcome the presumption that, under the circumstance, the challenged action ‘might be considered sound trial strategy.’ ” ’ ” (People v. Thomas (1992) 2 Cal.4th 489, 530-531.) “[W]e will not assume constitutionally inadequate representation and reverse a conviction unless the appellate record discloses ‘ “no conceivable tactical purpose” ’ for counsel’s act or omission.” (People v. Lewis (2001) 25 Cal.4th 610, 674-675.)
Defendant insists that there could be no satisfactory explanation or tactical reason for counsel’s failure to request the claim-of-right defense. Not so. A “claim-of-right defense provides that a defendant’s good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft or robbery.” (People v. Tufunga (1999) 21 Cal.4th 935, 938.). But, as defendant acknowledges, the basic defense offered by defendant at trial was that he never attempted to gain entry to the Lewises’ house, there was no evidence of a break-in attempt, the burglary tools in Zeno’s backpack remained in the backpack, and gloves were worn because of the cold weather. A claim-of-right defense would require defendant to acknowledge he attempted to enter the house but only to innocently reclaim property belonging to him. His trial counsel would have been put in the position of having to argue that defendant, based on the evidence, did not attempt to burgle the Lewises’ home, but alternatively, if he did, was only attempting to do so with the specific intent to retrieve his laser pointer that was somewhere in the home. Counsel chose to follow the innocence defense rather than the claim-of-right defense. We cannot condemn his choice of defenses, and we are even less inclined to assert he had an obligation to present both defenses as alternatives for the jury to decide. “The presentation of conflicting defenses is often tactically unwise because it tends to weaken counsel’s credibility with the jury.” (People v. Jones (1991) 53 Cal.3d 1115, 1138.) Thus, we conclude the claim-of-right instruction would have been inconsistent with defendant’s claim that he was not trying to break into the Lewises’ residence and that counsel made a reasonable tactical decision to forego the instruction and not present conflicting defenses for the jury to consider.
II
Insufficient Evidence
“ ‘ “When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] We determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.] In so doing, a reviewing court “presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” [Citation.]’ ” (People v. McCurdy (2014) 59 Cal.4th 1063, 1104.) “ ‘ “The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.” ’ ” (People v. Tully (2012) 54 Cal.4th 952, 1006.)
In deciding the sufficiency of the evidence, reversal is “ ‘ “unwarranted unless is appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ ” ’ ” (People v. Manriquez (2005) 37 Cal.4th 547, 577.) If the record supports the jury’s findings, “ ‘ “ ‘ “the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ ” ’ ” (People v. Abilez (2007) 41 Cal.4th 472, 504.)
Defendant argues insufficient evidence supports his criminal intent to commit larceny and attempted burglary. “The elements of theft by larceny are well settled: the offense is committed by every person who (1) takes possession (2) of personal property (3) owned or possessed by another, (4) by means of trespass and (5) with intent to steal the property, and (6) carries the property away.” (People v. Davis (1998) 19 Cal.4th 301, 305; see Pen. Code, §§ 484, 459.) Defendant contends the burglary tools were found in Zeno’s backpack, were never used or possessed by him, there was no evidence that he intended to use these tools for purposes of breaking or entering the Lewises’ home, and even if he did, there was no evidence he intended to take anything other than his own property. We find defendant’s argument unpersuasive. “When the evidence justifies a reasonable inference of felonious intent, the verdict may not be disturbed on appeal.” (People v. Matson (1974) 13 Cal.3d 35, 41.)
Defendant and Zeno were seen trying to force open multiple entry ways into the home with a lug wrench, without permission from the homeowners to do so. Previously, on multiple prior occasions, both men were told to stay away from the Lewises’ home. Although Matthew informed defendant his laser pointer was repaired, there had been no agreement between Matthew and defendant to pick up the laser pointer on April 24, 2016, nor were defendant or Zeno aware of where defendant’s laser pointer was located within the house. Further, when the officers arrived, a lug wrench was found inches from defendant on the porch, and defendant was wearing a beanie that rolled down to display a Chewbacca face. Additionally, Zeno was found wearing latex gloves and had multiple items that could have been used to burgle a home in his backpack.
It was the jury’s prerogative, not ours, to accept or reject defendant’s argument that he lacked the necessary criminal intent. Given the evidence to suggest the contrary, the jury rejected the defense theory and we cannot say the evidence is insufficient to sustain the jury’s finding. We conclude that sufficient evidence exists.
DISPOSITION
The judgment is affirmed.



RAYE , P. J.



We concur:



MURRAY , J.



HOCH , J.