Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Los Angeles County Super. Ct. No. KA077253
THE COURT:Troy Jackson (appellant) appeals from the judgment entered following a jury trial that resulted in his conviction of one count of petty theft with priors in violation of Penal Code, sections 484, subdivision (a) and 666 (count 2). The trial court found true the allegations that appellant had suffered two prison priors within the meaning of section 667.5, subdivision (b).
All further statutory references are to the Penal Code unless otherwise indicated.
The trial court sentenced appellant to the midterm of two years in state prison in count 2. The court imposed an additional year for each of appellant’s two prior prison terms pursuant to sections 667.5, subdivision (b) for a total sentence of four years.
We appointed counsel to represent appellant on this appeal.
The record shows that on December 3, 2006, Deputy Salvador Diaz of the Los Angeles County Sheriff’s Department observed a truck on the side of the street in an industrial area. It was a weekend morning and businesses were closed. Deputy Diaz saw a man standing along some bushes and removing scrap metal from the side of the road. Deputy Diaz observed the man walking towards the truck with the scrap metal, and he observed scrap metal inside the truck. As Deputy Diaz backed up the patrol car to speak with the man, the man ran away. Deputy Diaz and his partner attempted to pursue the individual, but they gave up after he jumped a fence.
Deputy Diaz saw that the passenger seat of the truck was cluttered with trash, and the only thing on the driver’s seat was a cell phone. As the deputies prepared paperwork to impound the truck, Deputy Diaz noticed a person watching them, and the deputy believed that person to be the individual who had fled from the truck. The individual was not wearing the jacket and beanie he had when first observed. As the individual (later identified as appellant) approached, the deputies observed fresh scratches on his arms. Deputy Diaz believed he was the suspect, and he called appellant over to the deputies. Appellant crossed the street and said, “‘Hey, I’m looking for a guy who was in that truck.’” Appellant said his cell phone was in the truck. Appellant was arrested.
A sheriff’s deputy recovered a jacket and a cap on the ground near the location where the truck was stopped. The owner of the business at the site of the stop testified that he kept a large bin of scrap metal in his fenced yard. Based on a telephone conversation with police, he confirmed that the scrap metal and a car radiator found outside the fenced area were from his yard.
After examination of the record, counsel filed an “Opening Brief” containing an acknowledgment that he had been unable to find any arguable issues.
On September 21, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues that he wished us to consider. On November 8, 2007, and January 28, 2008, appellant filed letter briefs.
Appellant first complains that the opening brief prepared by appellate counsel falsely states that he has served seven prison terms. Secondly, he points out several discrepancies in the deputy’s testimony at trial and differences between the deputy’s preliminary hearing testimony, the trial testimony, and the police report. Appellant argues that the deputy committed perjury and that appellant’s attorney was ineffective because she chose not to do anything about these discrepancies even after appellant called them to her attention. Appellant also states that although he is African-American, he had no African-Americans on his jury; rather, the jury was composed of Caucasians and Asians. He adds that the arresting deputies were Caucasian and the business owner, who testified at trial, was Asian. He asserts his counsel was ineffective for allowing this jury to be sworn.
Appellant further claims that the officers lacked probable cause to arrest him based on the “description the officer possessed.” He adds that the deputies were planning to arrest him from the time they saw him and were therefore obliged to read him his Miranda rights. Appellant also asserts the cell phone “had already been stricken for the record in the preliminary hearing” and “no cell phone was . . .introduced into evidence.” He informed his attorney that he never owned a cell phone, but she chose not to investigate it and failed to inquire if the defendant had a cell phone, which was ineffective assistance of counsel.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Lastly, appellant states that the prosecutor misled the trial court when he stated that the lesser included offense of petty theft with a prior was added in the preliminary hearing. Appellant asserts that the lesser offense was added to the information at short notice and was a violation of his right to a fair trial.
Appellant’s attorney stated in the opening brief that the information alleged appellant had previously served seven prison terms for felony convictions within the meaning of section 1203, subdivision (e)(4). The amended information actually states that appellant was convicted of five felonies within the meaning of section 1203, subdivision (e)(4). The serving of prison terms is not relevant to this section, which prescribes that a defendant twice convicted of a felony should not be granted probation except in an unusual case. Although appellant is correct that this statement in the opening brief is inaccurate, this statement had no effect on his conviction or sentence, and it has no effect on his appeal.
We conclude that the minor discrepancies in the deputy’s testimony at trial and the differences in the testimony from preliminary hearing to trial--such as whether or not the deputies’ act of following appellant a short distance was a pursuit or whether they saw him placing items in the truck or merely carrying them toward the truck--did not constitute perjury. As stated in the jury instructions, “[p]eople sometimes honestly forget things or make mistakes about what they remember.” (CALCRIM No. 105.) Furthermore, appellant’s trial counsel vigorously cross-examined Deputy Diaz regarding these points and others in his testimony. She pointed out the discrepancies and demanded a precise account of the events.
The record shows that Deputy Diaz did not rely on a vague description of appellant when he identified him as the suspect. Rather, Deputy Diaz relied on his own observations of the suspect he saw at the side of the road. The record also shows that neither deputy interrogated appellant at the scene. Appellant was the first to speak when the deputy called him over after he had observed appellant watching the officers. With respect to appellant’s complaints regarding the cell phone, the fact that responses to questions about the cell phone were stricken at the preliminary hearing has no relevance to trial testimony. In any event, a deputy who testified at appellant’s preliminary hearing was permitted to respond, once the proper foundation was laid, that appellant told her “he left his phone in the vehicle.” Appellant’s attorney was not ineffective, since the only person to ask if appellant had a cell phone was appellant himself, and he chose not to testify. The prosecutor was not required to introduce the cell phone itself, which had little relevance, into evidence. Relevant evidence is defined in Evidence Code section 210 as evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” It was appellant’s statement regarding the cell phone, which connected him to the truck and the stolen property, rather than the actual ownership of the cell phone that was relevant.
It is true that the original information, filed January 25, 2007, charged appellant only with a violation of section 487, subdivision (a), which prohibits grand theft of personal property exceeding four hundred dollars in value. On the first day of trial, before jury selection, the court noted it had been given an amended information. The prosecutor stated, “At the preliminary hearing, a grand theft was proved up, and we plan on proceeding on that. However, as an alternate theory, a jury could find petty theft. I also have the case law which supports adding the petty theft post-preliminary. Essentially it was proved up at the preliminary minus the priors. So the only thing that wasn’t proved up at the preliminary was the priors.” The prosecutor relied on People v. Robinson (2004) 122 Cal.App.4th 275 (Robinson). Appellant argued that that case was wrongly decided. The trial court allowed the amendment based on Robinson and its own findings that petty theft was a lesser included offense of the charged offense. Appellant was then arraigned on the petty theft count, and he pleaded not guilty.
Clearly, “[d]ue process requires that a criminal defendant be given fair notice of the charges to provide an opportunity to prepare a defense and to avoid unfair surprise at trial. [Citations.]” (People v. Tardy (2003) 112 Cal.App.4th 783, 786.) Section 666 is a sentencing statute that, by its terms, does not require the statute to be specifically pleaded in the information, although due process requires the pleading to apprise the defendant of the potential for an enhanced penalty and to allege every fact and circumstance necessary to establish its applicability. (Id. at p. 787; Robinson, supra, 122 Cal.App.4th at p. 282.) Convictions under section 666 have repeatedly been affirmed under circumstances like appellant’s in which the defendant had been charged with grand theft along with prior convictions and prior prison terms related to theft offenses. (See, e.g., Robinson, supra, 122 Cal.App.4th at p. 282; People v. Tardy, supra, 112 Cal.App.4th at p. 787; People v. Shoaff (1993) 16 Cal.App.4th 1112, 1118; People v. Franco (1970) 4 Cal.App.3d 535, 538-539; People v. Moranda (1963) 222 Cal.App.2d 424, 425- 426.)
At the start of trial on the theft charge, defendant knew that prior convictions and prior prison terms had been alleged in the original information. Thus, appellant had ample notice of, and was consequently required to be prepared to defend against, evidence that would be presented in support of both the theft charge and the allegations of prior convictions and prison terms. Under these circumstances, there was no due process violation.
Lastly, the record of voir dire is not before us, and there is no record of a new trial motion based on error occurring during jury selection. Therefore, we do not address any claims relating to an unfair jury.
We have examined the entire record and are satisfied that appellant’s attorney has fully complied with his responsibilities and that no arguable issues exist. (People v. Wende (1979) 25 Cal.3d 436, 441.)
The judgment is affirmed.