(Super. Ct. No. MF031877A)
The opinion of the court was delivered by: Duarte , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Anthony Demone Stuart of residential burglary, knowing receipt of stolen property and obstructing a peace officer, a misdemeanor. (Pen. Code, §§ 459, 496, subd. (a), 148, subd. (a).) The trial court sentenced defendant to prison for a total of six years. Defendant timely filed this appeal.
On appeal, defendant contends the trial court erred in denying his motion for a new trial based on jury misconduct, and that the trial court failed to treat his contentions of incompetence of trial counsel in accordance with People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The latter point is conceded by the People, who argue for a limited remand for the trial court to comply with Marsden.
We reject the contention that the trial court erred by denying the new trial motion, but agree the judgment must be reversed and the cause remanded with directions to the trial court to consider defendant's Marsden motion.
Defendant was found hiding in a shed following a pursuit from a residential burglary in Manteca on December 3, 2008.
Dominic Jesus testified that he saw a green van arrive and park in front of the house across the street from his home that morning. He saw two young Black men wearing dark knit stocking caps and sweat clothes. Both got out of the van and looked up and down the street, then walked toward the back gate of the house. "Before they went into the gate they both did a look to the right and left again." Jesus wrote down the van's license plate number and called "Crimestoppers." As Jesus was on the telephone, he saw the passenger enter the van and back it up to the gate, "then he opened up the gate and they started putting things in there," including a flat screen television. The men then drove the van north towards Brookdale Way.
Officer Elliott Eichel, of the Manteca Police Department, testified he received a dispatch about a burglary in progress, and he "traveled east on Brookdale Way." Brookdale Way dead-ends at Pestana Avenue, and at that intersection one patrol car turned left and Officer Eichel turned right. After "the first bend in the road," he saw "a green minivan in the distance." After Officer Eichel turned on his overhead and front lights and began to close the distance, the van sped up, ran through a stop sign and turned right on Nehemiah Drive. Officer Eichel briefly lost sight of the van, then turned the corner and saw the van stopped, and saw a Black man "with a dark colored sweatshirt and black beanie cap" run north and jump the fence of a house. A search team found a black beanie in the backyard of a nearby house at Confidence Way and Klondike Way, and fresh footprints in "the backyards of the houses on Klondike Way." A digital camera was found "on the north side of the fence" that the man had jumped over.
With the assistance of "Spike," a canine officer, defendant was found hiding under "random items" in a plastic shed in the backyard of a house "four houses north on Pestana from Nehemiah Drive," and defendant did not immediately comply with police orders to come out of the shed.
A video recording from Officer Eichel's patrol car shows a person running away from the van, wearing light shoes and gray pants, and then jumping a fence.
Renee Jones testified the van was hers, and her son Joshua Jones borrowed it from her Manteca home that morning. Although she did not see defendant--her son's "close" friend--that day, a car she had seen defendant drive was parked in her driveway. When she gave her son permission to use the van, she told him to tell defendant to move his car, because it was in her ...