Filed 4/1/15 P. v. Osibamawo CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

HOWARD OSIBAMOWO,

Defendant and Appellant. B256805

(Los Angeles County Super. Ct. No. BA420274)

APPEAL from a judgment of the Su perior Court of Los Angeles County, Henry J. Hall, Judge. Affirmed. Jeffrey J. Douglas, under appointment by the Court of Appeal , for Defendant and Appellant. No appearance for Plaintiff and Respondent.

_____________ ____________2 On February 10, 2014, Ho ward Osibamowo was charged in an information with one count of carjacking (Pen. Code, § 215, su bd. (a)) with a special allegation he had served three separate prison terms for fe lonies (Pen. Code, § 667.5, subd. (b)). Represented by appointed coun sel, Osibamowo pleaded not gu ilty and denied the special allegation. On April 1, 2014, the trial court de nied Osibamowo’s motion to replace his appointed counsel ( People v. Marsden (1970) 2 Cal.3d 118 ( Marsden )). Jury trial commenced on April 9, 20 14. According to the evidence at trial, on the night of June 29, 2013, Reginald Jones was serving drinks at a nightclub he owned in Los Angeles. Among the patrons he served were Osib amowo and a woman named Tammy. When Jones was closing the bar around 1:00 a.m., he went outside and saw Osibamowo and Tammy engaged in a heated discussion. Jone s pulled up his car in the driveway and got out to chain and lock up the nightclub parki ng lot. Osibamowo sn atched the keys from Jones’s hand, jumped into the car and turned on the ignition. Jones attempted to grab the car keys from the ignition as Osibamowo drove do wn the street, dragging Jones with him. The two men struggled and at some point, the car crashed into a parked truck, causing

Jones to be thrown into the air. Jones went back to his car and Osibamowo punched him

and fled. On April 14, 2014, shortly before the conclusion of the People’s presentation of evidence, the trial court heard and denied Osibamowo’s second Marsden motion and a request to represent himself ( Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562] ( Faretta) ). Osibamowo elected not to testify in his defense. On April 15, 2014 , the jury found Osibamowo gu ilty of carjacking. In a bifurcated proceeding, Osib amowo admitted the special a llegation. The trial court

sentenced Osibamowo to an aggregate state prison term of eight years: the middle term of five years for carjacking plus one year for each of the th ree prior prison term

enhancements. We appointed counsel to represent Os ibamowo on appeal. After examination of the record, counsel filed an opening br ief in which no issues were raised. On3 December 10, 2014, we advised Osibamowo he had 30 days within which to personally submit any contentions or issues he wished us to consider. After granting him two extensions of time, on February 17, 2015 we received a 12-page ha ndwritten response, in

which Osibamowo set forth his version of the events of June 29, 2013 and claimed the People’s witnesses lied at tria l. Osibamowo also asserted his appointed counsel provided constitutionally ineffective assist ance during trial. Attach ed to Osibamowo’s response were a police report and a portion of the report er’s transcript of the preliminary hearing,

both of which containe d hand-written notes. To the extent Osibamowo is challenging the sufficiency of th e evidence, Jones’s testimony constitutes substantial evidence to support the jury’s finding he committed the crime of carjacking; determining Jones’s cr edibility was the exclus ive province of the jury. (See People v. Zamudio (2008) 43 Cal.4th 327, 357 .) Nothing in the record suggests Jones’s testimony was inherently im probable or physically impossible. (See People v. Elwood (1988) 199 Cal.App.3d 1365, 1372.) As for Osibamowo’s version of events, he waived his right to testify and his written account and the police report are outside the record. We cannot consider such matters on direct appeal. (See People v. Szeto (1981) 29 Cal.3d 20, 35 [‘[m]atters not presented by the record cannot, of course, be considered on the suggestion of counsel in briefs or in affidavits attached thereto”].) Nor can we, on this record, determine whether counsel rendered ineffective assistance. ( Strickland v. Washington (1984) 466 U.S. 668, 686 [104 S.Ct. 2052, 80 L.Ed.2d 674].)

We have examined the record and are satisfied Osibamowo’s appellate attorney has fully complied with the responsibilities of counsel a nd no arguable issue exists. ( Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756]; People v. Kelly (2006) 40 Cal.4t h 106, 112-113; People v. Wende (1979) 25 Cal.3d 436, 441.)4 DISPOSITION

The judgment is affirmed.

ZELON, J.

We concur:

PERLUSS, P. J.

IWASAKI, J. *

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of th e California Constitution.