P.v. Nira
Filed 9/10/13 P.v. Nira
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT
RAYMOND NIRA,
Defendant and Appellant.
E057935
(Super.Ct.No. RIF1202178)
OPINION
APPEAL
from the Superior Court of
Judges. Affirmed.
Joseph T. Tavano, under
appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for
Plaintiff and Respondent.
I
INTRODUCTION
On September 14, 2012, an information charged defendant and appellant
Robert Raymond Nira with damaging and destroying property in an amount of $400
or more. (Pen. Code, § 594, subd.
(b)(1), count 1.) The information also
alleged that defendant served three prior prison terms (§ 667.5, subd. (b)),
and that he had been convicted of a prior serious and violent felony (§§ 667,
subds. (c), (e)(1), 1170.12, subd. (c)(1)).
On November 29, 2012, a jury found defendant guilty of count 1. Thereafter, the trial court found that the
three prior prison term allegations and prior serious and violent conviction
were true.
On January 11, 2013, the trial court sentenced defendant to a total term
of six years in state prison, and ordered defendant to pay various fines and
fees. Defendant was awarded 545 days of
credit for time served, consisting of 273 actual days and 272 days pursuant to
Penal Code section 4019.
On January 16, 2013, defendant filed a timely
II
FACTUAL AND PROCEDURAL
BACKGROUND
title="">[1]
On April 14, 2012, about 7:15 p.m., as the victim, her
children, and other family members were getting into the victim’s truck,
defendant approached them, and began hitting the vehicle with a “big
crowbar.†He “dented†the “tailgate and
took the paint†off of the truck. He
“beat the window until the whole window shattered and broke.†He hit the vehicle at least three times. The victim testified that defendant appeared
“really spaced out†and looked “scary.â€
The victim ran into the street and called 911. Defendant stopped hitting the vehicle, stood
by the vehicle for about four minutes, and then ran inside his home. The victim did not know defendant, and did
not give him permission to hit her vehicle.
Officer
Lun testified that when he arrived at the scene, the victim was “hystericalâ€
and was “screaming and yelling.â€
Officers contacted defendant in his brother’s apartment. Defendant appeared “excited and paranoid.†Defendant was eventually arrested.
The victim further testified
that she had not repaired her vehicle because she could not afford the
necessary repairs. The estimated cost of
the repairs was approximately $2,275.
III
ANALYSIS
After
defendant appealed, and upon his request, this court appointed counsel to
represent him. Counsel has filed a brief
under the authority of
and Anders v. California (1967) 386
U.S. 738, setting forth a statement of the case, a summary of the facts and
potential arguable issues, and requesting this court to undertake a review of
the entire record.
We offered
defendant an opportunity to file a personal
supplemental brief, and he has filed two supplemental briefs. On June 13, 2013, defendant filed a 14-page
handwritten brief (first brief). On June
28, 2013, he filed a five-page handwritten brief (second brief). In his first brief, it appears that defendant
is arguing that there is insubstantial evidence to support the verdict, ineffective
assistance of counsel (IAC), and that the trial court erred in failing to
instruct the jury on a lesser charge of misdemeanor vandalism. In his second brief, defendant adds to his
argument that the court erred in failing to instruct the jury on a lesser
charge of misdemeanor vandalism.
Pursuant to the mandate of People
v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record
for potential error.
We first address defendant’s
insubstantial evidence argument. When
determining whether the evidence was sufficient to sustain a conviction, “our
role on appeal is a limited one.†(
1206.) We must examine the entire record
in the light most favorable to the judgment to determine whether it contains substantial
evidence from which the jury could find the defendant guilty beyond a
reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence—meaning, evidence that
is reasonable, credible, and of solid value—must support each essential element
of an offense. (Id. at pp. 577-578.) If the
verdict is supported by substantial evidence, we are bound to give due
deference to the trier of fact and not retry the case ourselves. (Jackson
v. Virginia (1979) 443 U.S. 307, 319, 326.)
In determining
whether substantial evidence exists, “we do not reweigh the evidence, resolve
conflicts in the evidence, or reevaluate the credibility of witnesses.†(
62, 71.) “Although it is the duty of the
[trier of fact] to acquit a defendant if it finds that circumstantial evidence
is susceptible of two interpretations, one of which suggests guilt and the
other innocence [citations], it is the [trier of fact], not the appellate court
which must be convinced of the defendant’s guilt beyond a reasonable
doubt. ‘“If the circumstances reasonably
justify the trier of fact’s findings, the opinion of the reviewing court that
the circumstances might also be reasonably reconciled with a contrary finding
does not warrant a reversal of the judgment.â€â€™
[Citations.]†(
932-933.) The standard of review applies
even “when the conviction rests primarily on circumstantial evidence.†(People
v. Kraft (2000) 23 Cal.4th 978, 1053.)
In
this case, defendant contends that there is insubstantial evidence because he
did not commit the crime as presented.
Instead, in summary, defendant asserts the following: He was working in his brother’s garage when
he heard a noise, which sounded like a child crying. He looked outside and noticed “a large Black
male exiting a truck while yelling and slapping out at a young child who was
crying.†Defendant believed that the
child was being hurt. He then “got the
abuser’s attention by breaking his back window.†In essence, defendant asserts that he broke
the back window to assist the child who was being abused; and, in order to
cover up the abuse, the victim is setting defendant up by calling the police
and accusing him of damaging her vehicle.
Notwithstanding
the statement presented in defendant’s first brief, there is nothing in the
trial record to support defendant’s assertion.
The evidence presented at trial was summarized ante. Moreover, defendant,
in his personal brief, admits that he broke the window of a vehicle. According to the evidence presented during
trial and in defendant’s personal brief, the verdict is supported by
substantial evidence.
Second, we address
defendant’s IAC claim. Defendant
argues that his trial counsel rendered IAC.
In order to establish a claim of IAC, defendant must demonstrate, “(1)
counsel’s performance was deficient in that it fell below an objective standard
of reasonableness under prevailing professional
norms, and (2) counsel’s deficient representation prejudiced the defendant,
i.e., there is a ‘reasonable probability’ that, but for counsel’s failings,
defendant would have obtained a more favorable result. [Citations.]
A ‘reasonable probability’ is one that is enough to undermine confidence
in the outcome. [Citations.]†(People
v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among other cases,
668; accord, People v. Boyette (2002)
29 Cal.4th 381, 430.) Hence, an IAC
claim has two components: deficient
performance and prejudice. (
pp. 687-688, 693-694; People v.
Williams (1997) 16 Cal.4th 153, 214-215; People v. Davis (1995) 10 Cal.4th 463, 503; People v. Ledesma (1987) 43 Cal.3d 171, 217.) If defendant fails to establish either
component, his claim fails.
When a claim of IAC is made on direct appeal, and the record does not
show the reason for counsel’s challenged actions or omissions, the conviction
must be affirmed unless there could be no satisfactory explanation. (People
v. Pope (1979) 23 Cal.3d 412, 426.)
Here,
defendant claims that his counsel was ineffective because he failed to spend
the time needed on his defense before and during trial. An almost identical argument was made by
defendant immediately prior to trial during a Marsden
title="">[2] hearing.
In response to defendant’s claim, counsel stated: “I have done things for the case, including
sending out my independent investigator to confirm—this is a vandalism case, so
we’re trying to confirm how much was actually damaged. If we keep in under the felony limit, that’s
going to be a key part of the case, so my investigator has gone to talk to
another body shop to see what their value was.â€
Counsel went on to state that he had attempted to subpoena records for
the case. Moreover, counsel confirmed
that he had not visited defendant in jail but had discussed the case “at
length†at the different hearings. Additionally, defense counsel indicated that
“based on the notes from the previous attorney†and discussions with defendant,
counsel “didn’t know what else could be added to that.†Counsel further pointed out that he had
requested that defendant give counsel additional time to look into things
further but that defendant had “declined to waive time.â€
Then
the court questioned defense counsel on other matters. Counsel answered each question and explained
his actions. For example, counsel
indicated that he did not want to interview the victim in this case but wanted
to cross-examine her during trial—this was a tactical decision. The court reiterated, “I think he told me
he’s making a tactical decision that it’s better to surprise this complaining
witness with this subject, ask if she can supply proof at trial and try to
catch her by surprise on this subject rather than let her know weeks in advance
that this is going to come up.†At the
conclusion of the hearing, the court denied defendant’s request for new
counsel. The court, however, told
defendant that his decision was not final and that defendant could file another
motion for a Marsden hearing if he
believed he needed “a better attorney or a different attorney.â€
We
have reviewed the reporter’s transcript of the trial. During trial, defense counsel was attentive,
cross-examined all the witnesses, and was a strong advocate for defendant. Based on the above, we find that defendant
has failed to demonstrate that his “counsel’s performance was deficient in that
it fell below an objective standard of reasonableness under prevailing
professional norms.†(
Third,
we address defendant’s claim that the trial court erred in failing to instruct
the jury on a lesser charge of misdemeanor vandalism. Again, this argument was addressed by the
trial court at the close of trial. The
court stated: “And then lastly, as to
the lesser, I recognize that misdemeanor vandalism is a lesser-included offense
of felony vandalism. However, there
needs to be evidence that the action which defendant took was, in fact, just a
misdemeanor or could be a misdemeanor, I should say, versus the felony. From what the testimony and the evidence
shows, this was [a] continuous course of conduct that happens in a fairly small
span of time where the defendant apparently beats up this woman’s car with some
sort of pole or stick, and in the process, smashes out the back window and
dents the tailgate. And taken all
together, it . . . totaled somewhere in the neighborhood of $2,200 in damages.
“The
threshold for a misdemeanor is $400.
There is no evidence that he, I should say, didn’t do the other
damage. The evidence as it stands is all
the damage to the back of that car was done by the defendant. I don’t think it would be appropriate to sort
of parse out the window from the dent from the fresh paint that was
needed. It just doesn’t make any sense
to me.
“And,
you know, if there was some evidence somehow that those dents existed prior, I
think you’d have a good argument. If
there was some evidence that somebody else did that damage, I think you’d have
a good argument. But it’s just the
defendant with his pole beating up the car.
“And,
you know, kind of take victims as you find them. He happened to beat up a car with a custom
paint job on it. And I have no doubt
that that’s increasing the cost to fix the car.
So for all of those reasons, I find there is insufficient
evidence—there’s virtually no evidence to warrant giving the instruction of a
misdemeanor because the damages don’t come close to $400. There’s no evidence that any of these damages
were caused in any other fashion other than by the defendant.â€
We agree with the trial court and find that the it did
not err in failing to instruct the jury on the lesser charge of misdemeanor
vandalism.
We have now
concluded our independent review of the record and found no arguable issues.
IV
DISPOSITION
The judgment is
affirmed.
NOT TO BE PUBLISHED IN
OFFICIAL REPORTS
McKINSTER
Acting
P.J.
We
concur:
RICHLI
J.
KING
J.
name="_ftn1" title=""> [1] The
facts are taken from the reporters’ transcripts of the preliminary hearing and
jury trial, as well as the probation officer’s report.
name="_ftn2" title=""> [2]
