IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Amador)
September 30, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JAMES GEORGE STAMOS, JR., DEFENDANT AND APPELLANT.
(Super. Ct. No. 10-CR-17093)
The opinion of the court was delivered by: Nicholson , J.
P. v. Stamos
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Having reviewed the record as required by Wende, we affirm the judgment. We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
A few days after Joseph Corso discovered his Chevrolet Corsica missing from his home in Cupertino, defendant was seen by Amador County Sheriff Deputy Nathan Woods driving it in Jackson around 4:00 a.m. Woods ran a records check and learned the vehicle might be stolen. He followed the car for about a mile and saw it roll through a stop sign, turn right off the road and stop. When defendant exited the car, Woods took him into custody. Defendant told Woods he had gotten the car from a friend and forgotten to return it. The ignition key was a plastic valet key. Corso generally left a plastic valet key in the car in the glove compartment box.
Defendant claimed Corso's sister-in-law, who he had known as a child, had given him permission to use the car for a couple of days. He drove to Valley Springs to get some clothes and was stopped in Jackson while returning to Cupertino. He intended to return the car, but kept encountering difficulties such as running out of gas and the car battery dying.
Corso countered he had not seen his sister-in-law since his brother's death some 11 years earlier and she did not live in the same town as he did.
Defendant was charged with vehicle theft (Veh. Code, § 10851, subd. (a)) and receiving stolen property. (Pen. Code, § 496d, subd. (a).)*fn1 It was also alleged defendant had sustained a prior strike conviction (§ 667, subds. (b)-(i)) and served a prior prison term. (§ 667.5.)
Jury trial commenced on October 19, 2010. Following trial, defendant was found guilty of vehicle theft, but acquitted of receiving stolen property. In bifurcated proceedings, the court found the prior strike conviction and the prior prison term allegations true. Defendant was sentenced to an aggregate state prison term of seven years, achieved by imposing the upper term of three years doubled, consecutive to one year for the prior prison term. He was awarded 206 days of presentence custody credits, 138 actual and 68 conduct credits under section 4019. He was also ordered to pay various fines and fees.
Appointed counsel filed an opening brief setting forth the facts of the case and requesting this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief, claiming the court erred in denying his motion to dismiss based on a violation of his right to a speedy trial, he was improperly "forced to wear jail shoes" during trial and his attorney was ineffective in failing "to obtain witnesses or things as evidence to present a defense." Defendant also claims his sentence was in error, as to his knowledge, he did not have a prior strike conviction.
Defendant was entitled to have an information filed within 15 days of being held to answer (§ 1382, subd. (a)(1)) and was entitled to be brought to trial within 60 days of his arraignment on the information. (§§ 1382, subd. (a)(2); 1049.5.) Both deadlines were met. The preliminary hearing was held on August 6, 2010, and defendant was held to answer on that same date. The information was filed on August 10, 2010, and defendant was arraigned on the information on August 20, 2010. Trial commenced on October 19, 2010. Accordingly, there was no violation of defendant's speedy trial right.
Defendant next complains he was forced to wear "jail shoes" at trial. Although the right to be tried in civilian clothing is a constitutional right valuable to a fair trial, it can be forfeited by the failure to make a timely objection. (People v. Taylor (1982) 31 Cal.3d 488, 495-496.) Here, there is no indication in the record that defendant was wearing "jail shoes" during trial, that the jury could see the "jail shoes," or that there was anything distinctive about the shoes which would enable the jury to identify them as "jail shoes." Nor is there any indication that defendant objected to wearing those shoes at trial. Accordingly, the issue is forfeited. (Id. at pp. 494-496.)
Defendant also claims he received ineffective assistance of counsel in that counsel did not call particular witnesses to testify or present particular evidence. To demonstrate ineffective assistance of counsel, defendant must show counsel's actions were, objectively considered, both deficient under prevailing professional norms and prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693-694].) "'We cannot evaluate alleged deficiencies in counsel's representation solely on defendant's unsubstantiated speculation.' [Citations.]" (People v. Bolin (1998) 18 Cal.4th 297, 334.) Defendant mentions a discrepancy in the victim's statements of where he kept the ignition key, in the glove box of the car or in the ignition. But defendant does not argue how the admission of that evidence would have made any difference in the outcome of the trial. We cannot independently discern any way in which that evidence would have affected the trial. Defendant does not identify any other evidence which should have been admitted, does not identify particular witnesses who should have testified, what their testimony might have been or how that testimony would have made a difference in the trial. To find that unspecified evidence and unidentified witnesses are reasonably likely to have resulted in a more favorable result for defendant would be rank speculation. This we will not do. (See People v. Medina (1995) 11 Cal.4th 694, 773; In re Avena (1996) 12 Cal.4th 694, 726-728.) Defendant has not met his burden to establish ineffective assistance of counsel. (People v. Wash (1993) 6 Cal.4th 215, 269.)
Finally, defendant claims his sentence should not have been doubled, as he did not have a prior strike conviction. Based on fingerprints and photographs, the court found defendant was the person identified in the section 969b package, admitted as evidence on the prior strike conviction and prior prison term allegations. The package revealed that defendant was convicted of first degree residential burglary in 2006, a strike offense, and the prior prison term allegation was found true. The first degree burglary conviction was also reflected in the Federal Bureau Investigation rap sheet and the Department of Corrections and Rehabilitation commitment sheet. Accordingly, the court found defendant had sustained a prior strike conviction for first degree residential burglary in December 2006. The record supports the trial court's finding that defendant had a prior strike conviction and defendant's sentence was properly doubled as a result of that conviction.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.*fn2
The judgment is affirmed.
We concur: BLEASE , Acting P. J. DUARTE , J.