P. v. Lujan

Filed 8/25/08 P. v. Lujan CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

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

Leslie E. Brown, Judge. Affirmed.

Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

STATEMENT OF THE CASE

In an information filed on July 9, 2007, Michal Lujan, appellant, was charged with theft (count 1, Pen. Code 484e, subd. (d).)[1] It was further alleged that appellant had suffered two prior juvenile adjudications that qualified as strikes under sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d) and that he had served one prior prison term within the meaning of section 667.5, subdivision (b).[2]

Appellant filed a motion to suppress evidence pursuant to section 1538.5. On October 2, 2007, the trial court heard testimony and denied appellants motion to suppress, finding Burbank Police Officer Neil Gunn to be more credible than appellant. According to the record, the trial judge at the time that he denied the 1538 motion stated: Im going to find the officers credibility is a greater credibility in this case. I think it comes down to that. And on that basis, the courts going to deny the motion.

On November 16, 2007, appellant waived his constitutional rights and pled no contest to the charge of theft. The court sentenced appellant to the low-term of sixteen months, to be served concurrent with any time imposed for a parole violation. The court also imposed a $200 restitution fine; a $200 contingent parole revocation fine; a $20 court security fee; and a $10 crime prevention fee. The court awarded appellant 244 actual days of credit plus 122 days of good time/work time credit, for a total presentence credit of 366 days.

Appellant filed a timely notice of appeal from the denial of his motion to suppress.

STATEMENT OF FACTS

Prosecution Case

On March 18, 2007, at 6:00 p.m., Burbank Police Officer Neil Gunn responded to an Outback Restaurant in order to investigate a reported forgery. When the officer arrived, appellant was sitting outside the restaurant with his sister, Cynthia. The officer contacted appellant. When the officer asked if he could speak with him, appellant replied, Whatever you want to do thats fine. Take me to jail. Thats my real home. Appellant also stated he was on parole. The officer verified via radio that appellant was on active parole. Next the officer asked appellant if he could search him and appellant responded, Sure. Go ahead. During the search, the officer removed appellants wallet from his back pocket, looked inside and found a Starbucks gift card. The Starbucks card bore the number of a credit card that had been taken during a burglary in May of 2006.

Defense Case

Appellant testified that he had dinner at the Outback Steakhouse with friends. When Officer Gunn first approached appellant he asked if he could conduct a weapons search. Appellant gave the officer permission to do so. During that search, the officer removed appellants wallet. Appellant did not see the officer look in the wallet.

After the search, Officer Gunn walked away. He returned five to ten minutes later with Officer Henry. The two officers asked questions about codefendant Skoponsky and then asked whether appellant was on probation or parole. Appellant responded that he was on parole.

DISCUSSION

On April 3, 2008, we appointed counsel to represent appellant on this appeal. After examination of the record, on April 7, 2008, counsel filed an opening brief that contained an acknowledgment that he had been unable to find any arguable issues. On April 7, 2008, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider. As of todays date, no supplemental documents have been filed by appellant.

We agree with counsel that there are no arguable issues in this appeal. The trial judge decided the outcome of the 1538.5 hearing on the basis of the credibility of the witnesses. It is an established principle that the credibility of witnesses and the weight to be given their testimony are matters within the sole province of the trier of fact. (People v. Lawler (1973) 9 Cal.3d 156, 160.) We do not reweigh the evidence or substitute our determination of witness credibility for that of a trial court. (People v. Ramos (2004) 34 Cal.4th 494, 505, People v. Zededa (2001) 87 Cal.App.4th 1183, 1192.)

Based on our examination of the entire record we are satisfied that appellants attorney has fully complied with his responsibilities, and that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259; People v. Wende (1979) 25 Cal.3d 436, 441.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

RUBIN, J.

FLIER, J.

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[1] All undesignated statutory references are to the Penal Code.

[2] At the time of the taking of the plea, the District Attorney stated, Mr. Lujan is a third-striker. A three-striker. But obviously the People are not going to be asking him to admit those. There is no other mention in the record of the disposition of these allegations and appellant was not sentenced on them.