P. v. Jimenez
Filed 12/15/08 P. v. Jimenez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, Plaintiff and Respondent, v. ERNESTO JIMENEZ, Defendant and Appellant. | E045318 (Super.Ct.No. BAF005524) OPINION |
APPEAL from the Superior Court of Riverside County. J. Thompson Hanks, Judge. Affirmed.
Robert Booher, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant Ernesto Jimenez appeals after he was convicted of burglary, receiving stolen property, possession of burglary tools, and possession of marijuana. His appointed appellate counsel has filed a brief pursuant to Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], and People v. Wende (1979) 25 Cal.3d 436, raising no specific issues on appeal. Defendant has been given the opportunity personally to file a supplemental brief suggesting any issues he wishes to argue; no supplemental brief has been filed. We have undertaken the required examination of the entire record and discern no arguable issues. We therefore affirm.
FACTS AND PROCEDURAL HISTORY
Defendant lived with his mother in Banning. His aunt also lived on the same street. On April 7, 2007, defendants aunt and her family left their home for the day. When the aunt returned the next day, she discovered the back patio door was broken. Her sons wallet had been moved, and money was missing from it. The aunt also discovered that a black bag with jewelry was missing from her bedroom closet.
Defendants aunt called police to report the theft. She also told her sister, defendants mother, about the theft and described what was missing. Defendants mother searched defendants room, and found a black bag and jewelry in the pocket of defendants clothing. She recognized the jewelry as belonging to her sister. She called police.
When the police arrived, defendant consented to a search of his bedroom. They found some marijuana which defendant stated he had under his bed. They also found two screwdrivers with bent tips; the screwdrivers were consistent with tool marks on the aunts broken patio door. At trial, defendants aunt identified the black bag and jewelry as belonging to her.
Defendant was charged with one count of burglary, one count of receiving stolen property, one count of possession of burglary tools, one count of possession of marijuana, and one count of participation in a criminal street gang. The information further alleged that the burglary and receiving stolen property counts were committed in furtherance of a criminal street gang.
The court dismissed the gang count and gang allegations for insufficiency of the evidence. After a jury trial, defendant was convicted on all four remaining counts. The court denied probation and sentenced defendant to the mitigated term of two years on count 1, stayed count 2 pursuant to Penal Code section 654, and imposed concurrent sentences of 90 days on counts 3 and 4.
ANALYSIS
I. Standard of Review
When counsel files a brief setting forth a summary of the facts and proceedings, but raises no specific issues, the Court of Appeal must conduct an independent review of the entire record to determine whether it reveals any issues which would, if resolved favorably to the appellant, result in reversal or modification of the judgment. (People v. Wende, supra, 25 Cal.3d at pp. 441-442.)
II. No Arguable Issues Appear
Appointed appellate counsel has set forth a summary of the proceedings and a statement of facts, but has raised no specific issues. Defendant has been afforded the opportunity to file a supplemental brief raising any issues he feels the court should consider, but no supplemental brief has been filed. Counsel has suggested some possible areas for inquiry, however, in the course of this courts review of the entire record: whether defendants trial counsel was ineffective for suggesting that the jurors treat their deliberations as they would other serious decisions, such as buying a house or car, or getting married; whether the trial court erred in denying probation; and whether there was an insufficient foundation for testimony that money was missing from the wallet.
Trial counsels remarks did not alter the burden of proof. The jury was fully instructed on reasonable doubt. That counsel exhorted the jurors to take the matter seriously, as they would other major life decisions, was not improper. It neither fell below the standard of a competent, diligent advocate, nor resulted in any prejudice to defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 [104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674].)
Although the probation report recommended that defendant be granted probation, the trial court found there were no unusual circumstances warranting a grant of probation. Defendant was relatively youthful (19 years old), but he was an adult, and he stole to support a drug habit, such that defendants current offenses were connected to his other (drug) convictions. As counsel below observed, defendant had committed the current offenses while he was on probation in another case, and he was again arrested on a drug charge after his convictions in the current case. He was also ineligible for certain residential drug treatment programs because of his gang association. His counsel attempted to minimize the seriousness of the current offenses by emphasizing that defendant had victimized a relative, rather than a total stranger, and noted that the stolen jewelry had been returned.
The court did not abuse its discretion in denying probation. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) [I]t is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial courts order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825.) Defendants relative youth was a mitigating factor, but none of the other circumstances demonstrated that the current offense was unusual so as to warrant a grant of probation. The courts determination was not arbitrary.
Counsel has suggested that the trial court erred in allowing defendants aunt to testify that money was missing from her sons wallet, without establishing a foundation that money was in the wallet in the first place. (See People v. Peterson (1967) 251 Cal.App.2d 676, 680.) The court overruled defense counsels objection as to speculation, but no foundation objection was raised. In any case, any conceivable error was harmless in view of the theft of the jewelry which was discovered in defendants possession after the burglary. (Peoplev. Watson (1956) 46 Cal.2d 818, 836.)
We have reviewed the entire record and no additional issues suggest themselves.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ McKinster
Acting P.J.
We concur:
/s/ Richli
J.
/s/ King
J.
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