Filed 6/10/15 P. v. Duran CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE,
Plaintiff and Respondent,

v.
PAUL EDWARD DURAN,
Defendant and Appellant. B256701
(Los Angeles County Super. Ct. No. BA415427)

APPEAL from a judgment of the Superior Court of Los Angeles County, Katherine Mader, Judge. Affirmed. Paul Edward Duran, in pro. per.; and Sa rah A. Stockwell, und er appointm ent by the Court of Appeal, for De fendant and Appellant. No appearance for Pl aintiff and Respondent.

——————————2 PROCEDURAL BACKGROUND In January 2014, appellant Paul Edward Duran was arraigned on a felony information charging him with carjacking, in violation of Penal Code section 215, subdivision (a) 1 (count 1); attempted carjacking, in violation of sec tions 664 and 215, subdivision (a) (count 2); and attempted second degree robbery, in violation of sections 664 and 211 (count 3). In March 2014, the prosecution added an allegation that Duran had suffered a prior strike conviction in New Mexico. Duran represented himself at the jury tr ial, and filed numerous motions before, during and after trial, including: two sec tion 995 motions; a motion to compel discovery;

a Pitchess 2 motion; two section 1385 motions to di smiss based on insu fficient evidence; a motion to suppress evidence, pursuant to section 1538.5 ; a demurrer to the amended information; two motions to arrest judgment; a request for judicial notice of a 2004 psychological evaluation; a posttrial discovery motion; a motion for a new trial; and a motion to exclude the photographic six-pack lineup as prejudicial. Some motions were abandoned or withdrawn by Duran; the trial court denied others. Only Duran’s pretrial motion to exclude the six-pack lineup was gran ted. As to that motion, the court found that the photographic array––in which Dura n was the only individual depicted with
tattoos on his forehead––was “unduly suggestive” and proh ibited the prosecution from using it during the examination of one witness. 3 A jury found Duran guilty on all counts. The trial cour t subsequently found that Duran suffered a strike prior conviction. Dura n was sentenced to: the upper term of nine years on count 1, doubled b ecause of the strike prior, one-third the midterm for 10

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 Pitchess v. Superior Court (1974) 11 Cal.3d 531.

3 The court required that the prosecution’s witness (who was not a victim of any of the charged crimes) undergo a Evidence Code section 402 hearing before testifying to evaluate whether his identification was tainted by the suggestive six-pa ck. The witness in question was not called to testify, a nd no section 402 hearing was conducted.3 months on count 2, doubled du e to the strike prior, and on e-third the midterm for eight months as to count 3, double d due to the prior strike. Th e sentences on counts 2 and 3 were ordered served consecutively to the se ntence on count 1. Custody credits were awarded, and various fines and fees im posed. This timely appeal followed.
FACTUAL BACKGROUND On the afternoon of July 21, 2013, as Melinda McLeod was parking her car near her home, Duran approached he r from behind, punched her in the back, took her car keys and got into her vehicle and dr ove off. After Duran was appr ehended later that evening,
Mcleod identified him at a field show- up and also identified him at trial. 4 She testified that when he assaulted her, Duran had been “kind of greasy and sweaty,” and his long hair (pulled back during trial) was “down and sweaty.” McLeod also noticed Duran had
“blocks of dark tattoos” on his forehead. She could not identif y them at the time because Duran was dirty and sweaty, and she was afraid. She reported the incident to the police. Later that day, Duran led police on a pursu it weaving in and out of traffic and into oncoming traffic. The officers ultimately ab andoned the vehicle pursuit, deeming it too dangerous in light of the amount of pedestri an traffic. One officer involved in that pursuit testified he saw “666” tattooed across Duran’s forehead, alth ough he did not call
that information in nor include it in a report. At about 8:00 p.m. on July 21 , 2013, Glenda Cerrato had just parked her car. She
left the front driver’s side d oor open and opened the rear door to get her four year old out of the car. Just then, Duran drove toward Cerrato at a high rate of speed, parked the vehicle and got out. He sat in the driver’s se at of Cerrato’s car scre aming at her to give him her keys. Cerrato grabbed her child and ran inside her home. Duran ran away. At trial, Cerrato identified Duran as the man who tried to take her keys. Cerrato testified that at the time he tried to take her keys, Duran’s face was dirty and sweaty, his hair was

4 McLeod testified that, on a scale of 1-to -10, her degree of certainty that Duran was the man who assaulted her was a “10.”4 all over his face, and he had “something big” tattooed on his forehead. Cerrato identified Duran later that evening during a field show-up. Next, Duran approached Benjamin Hakimf ar and demanded the keys as Hakimfar approached his car. Hakimfar made up a stor y, telling Duran the car was not his, but that he lived across the street and would bring his own car over. Duran agreed; Hakimfar called 911 as he left the scene. Hakimfar, who testified at trial that he was “positive” Duran had been the man he encountered, descri bed him at the time of their July 21, 2103, encounter as having long dirt y hair and “a lot of tattoos” on his face. He could not specify what the tattoos were. Later on the evening of July 21, 2013 , Duran approached Ramon Orozco as Orozco was removing an item fro m the trunk of his car. Duran tried to take Orozco’s keys, slapped Orozco’s face and ran off. Orozco ran after Duran, signaling Duran’s location to a helicopter overhead. As Orozco rounded the corner, Duran punched him in the face. When the police arri ved at the scene they found Du ran—very sweaty and dirty, with long greasy hair––hiding in the bushes. One of the apprehendi ng officers testified
that Duran had tattoos on his f ace but that he could not make out the details of the tattoos at first because Duran was so dirty. Oroz co testified that he saw tattoos on Duran’s forehead, and that his long hair was loos e at the time of their encounter. Orozco
identified Duran both at the sc ene and in court as the man who struck him and tried to take his keys. Duran’s defense, explored by cross-examining prosec ution witnesses, was
that this was a case of mist aken identity and he was not the person who committed the crimes alleged against him. This contenti on was based on the fact that Duran has the digits “666” prominently tattooed on his fore head and no complaining witness included that information in his or her description to the police. After he was apprehended and given his Miranda 5 rights, Duran told one officer: “I took the car. I to ok the car from the old lady.”

5 People v. Miranda (2011) 199 Cal.App.4th 1403.5 DISCUSSION We appointed counsel to represent Duran on appeal. After examination of the record, Duran’s counsel filed an opening brie f raising no issues, and asked this court independently to review the record. ( People v. Wende (1979) 25 Cal.3d 436, 441 ( Wende ).) Pursuant to Anders v. California (1967) 386 U.S. 738, 744 [87 S.Ct. 1396, 18 L.Ed.2d 493] ( Anders ), Duran filed a supplemental brief which (to the extent we are able to ascertain) identifies numerous po ssible but not arguable issues:
1. Whether the trial court erred in de nying his section 1538.5 motion to suppress evidence, based on his contention that inadmissible evidence was used to obtain an arrest warrant, resulting in an uncons titutional search and seizure? 2. Whether the trial court erred by im properly admitting any evidence offered by the prosecution, all of which was fruit of the poisonous tree due to the inadmissibility and exclusion of the photographic line-up? 3. Whether the trial court erred by permitti ng the matter to proceed to trial at all, given the alleged constitutional violations of the Fourth and Fourteenth amendments? 4. Whether a neutral magistrate or othe r judicial authority oversaw the warrant process? 5. Whether Duran was improperly denied th e ability to obtain tr ial transcripts to assist him in preparation of a motion for a ne w trial and/or precluded from presenting that motion verbally in May 2014? 6. Whether a detective acted within the go od faith exception in obtaining an arrest warrant premised on unconstitutio nal identification evidence?
7. Whether Duran received ineffective assistance of counsel at the preliminary hearing because his attorney failed to object to the six-pack lineup? 8. Whether various writs previously de nied by this court, are reviewable? 9. Whether Duran’s continual in-court obj ections regarding exclusion of evidence are sufficient “to cover the primary illegality as inadmissible evid ence/testimony against [Duran] in his jury trial”?6 10. Whether, based on the totality of circumstances, witnesses’ in-court identifications of Duran were premised on evidence independent of the July 21 field show-ups, and whether Duran was entitled to have counsel present during those showups?
We have reviewed the entire record in accordance with Wende
, supra , 25 Cal.3d
436 and Anders
, supra , 386 U.S. 738 and have not found any arguable appellate issues. Most of the issues raised by Duran relate to his meritless c ontention that he was deprived
of a fair trial and the action should have be en dismissed because the evidence underlying his arrest and prosecution was subject to the “fruit of the poisonous tree” doctrine, i.e., must be excluded because of the impermis sibly suggestive evidence contained in the photographic six-pack which the court excl uded from evidence at the outset of trial. Duran’s supplemental brief does not meet his burden of demonstrating error. Judgments are presumed correct and an appe llant has the burden of providing a record which clearly demonstrates error, along with reasoned argument and citations to authority to support the assertions of error. (See State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610 [presumption of correctness]; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132 [inadequate record]; McComber v. Wells (1999) 72 Cal.App.4th 512, 522–523 [argument must be supported by argument and citation to authority].) Apart from taking issue with the photographic array, evidence the trial court appropriately excluded, Duran does not explain why other evidence––which overwhelmingly supports his conv ictions––was deficient. We have examined the record and found no arguable error that would result in a disposition more favorable to Duran. ( People v. Kelly (2006) 40 Cal.4th 106; Wende
, supra , 25 Cal.3d 436.) The remaining issues raised by Duran are si milarly without merit. To the extent Duran raises issues supported by evidence ou tside the appellate reco rd, such issues are not reviewable. (See In re Carpenter (1995) 9 Cal.4th 634, 64 6 [appellate jurisdiction
limited to the four corners of the record on appeal].) As to other claims of error, the record discloses no petition for writ of habeas corpus, and the Federal Rules of Criminal
Procedure on which Duran re lies do not govern here.7 We have reviewed the entire record in accordance with Wende
, supra , 25 Cal.3d at page 441 and Anders
, supra , 386 U.S. at page 744, are satisfied that Duran’s c ounsel fully satisfied her responsibilities a nd find no arguable issues. ( People v. Kelly
, supra , 40 Cal.4th at pp. 109–110; Wende
, at p. 441.) Accordingly, we affirm the judgment of
conviction.
DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED.

JOHNSON, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.