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The People v. Charles Gooden

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


February 15, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
CHARLES GOODEN, DEFENDANT AND APPELLANT.

(Super. Ct. No. 10F05513)

The opinion of the court was delivered by: Murray , J.

P. v. Gooden

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Charles Gooden drove a stolen vehicle away from a motel parking lot. After driving a short distance, he was stopped by California Highway Patrol Officer Matt Silva. He had in his possession several cell phones and a black ski mask. Officer Silva searched the car and found, among other things, license plate frames on the floor in the back of the car. Inside the trunk, he found an open canvas bag containing a pellet gun that looked like a real .357 magnum.

Officer Cory Shell arrived as backup for Silva. Defendant had originally been placed in Silva's car, but was moved to Shell's. Defendant told Shell that he lived in an apartment complex approximately three miles from the motel, and said he had rented the car for $30 from a person named "Mark" the prior night. Defendant said he had known Mark for about three years but did not know Mark's last name, his address, his telephone number or how to contact him. He did not know if Mark was employed and had never seen Mark driving the car. Defendant said he was to bring the car back to his apartment complex at 8:00 a.m. the next day. When asked where he was going, defendant initially told Shell he was on his way to work; however, when asked again, he said he was looking for an auto parts store. Defendant told Shell he found the ski mask on the ground the previous day and used it to wipe the sweat from his head. He denied any knowledge of the items found in the trunk of the car.

Defendant was arrested and charged with driving a stolen vehicle (Veh. Code, § 10851, subd. (a) -- count one) and receiving stolen property (Pen. Code, § 496d, subd. (a) -- count two).*fn1 As to both counts, it was alleged that defendant had a previous conviction for driving a stolen vehicle. (Pen. Code, § 666.5, subd. (a).) It was further alleged that defendant had served three prior prison terms. (Pen. Code, § 667.5, subd. (b).)

Prior to trial, defendant admitted the prior conviction and waived his right to a jury trial on the issue of the prison prior allegations.

At the conclusion of trial, the jury found defendant guilty of both counts. In a bifurcated proceeding, defendant admitted the three prison prior allegations, and the court found the allegations true beyond a reasonable doubt. The court sentenced defendant to the middle term of three years on count one, plus one year for each of the three prior prison terms, and stayed the sentence for count two pursuant to Penal Code section 654, for an aggregate sentence of six years in state prison, minus 308 days of presentence custody credit. The court also imposed specified fees and fines. Defendant filed a timely notice of appeal.

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 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 exercised his right to file a supplemental brief. We will address his claims in the order presented by his brief.

1. Defendant contends his story about renting the car from a person named "Mark" was not thoroughly investigated. To avoid forfeiture of his claims of error, defendant had the burden to support his arguments with analysis and citation to evidence in the appellate record. (People v. Hardy (1992) 2 Cal.4th 86, 150 (Hardy); People v. Galambos (2002) 104 Cal.App.4th 1147, 1159 (Galambos); People v. Sangani (1994) 22 Cal.App.4th 1120, 1135-1136 (Sangani.) He did not do so.

In any event, his claim fails on the merits. Defendant provided nothing more to police than the name "Mark." He could not identify Mark's last name, his address, his telephone number, or any other contact information or information whatsoever that would assist in identifying that alleged person.

2. Defendant claims his statement to the arresting officers was not recorded. Again, it is defendant's burden to support his arguments with analysis and citation to evidence and legal authority in order to avoid forfeiture. (Hardy, supra, 2 Cal.4th at p. 150; Galambos, supra, 104 Cal.App.4th at p. 1159; Sangani, supra, 22 Cal.App.4th at pp. 1135-1136.) He failed to do so.

In any event, a defendant does not have a right to have his statement upon arrest recorded in any fashion. And the trial court appropriately instructed the jury that it was to consider the unrecorded statement with caution. (CALCRIM No. 358.) The claim fails on the merits.

3. Defendant contends that several sidebar conferences conducted during trial were not recorded because the microphone was not functioning properly. According to the record, defendant never objected to the lack of recording of sidebar conferences. His claim is thus forfeited on appeal. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1; People v. Walker (1991) 54 Cal.3d 1013, 1023.)

4. Finally, defendant claims his request for an investigator to find "Mark" was "never granted." Unfortunately, defendant provides no information regarding when he made his request, and to whom. Thus, once again, he forfeits his claim for failure to support it with analysis and citation to evidence in the appellate record. (Hardy, supra, 2 Cal.4th at p. 150; Galambos, supra, 104 Cal.App.4th at p. 1159; Sangani, supra, 22 Cal.App.4th at pp. 1135-1136.)

Having undertaken an examination of the entire record, we find no arguable error in favor of defendant.

DISPOSITION

The judgment is affirmed.

We concur: HULL , Acting P. J. BUTZ , J.


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