Filed 11/6/13 P. v. Ruiz CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE,
Plaintiff and Respondent,

v.
RANDAL A. RUIZ,
Defendant and Appellant. B243545
(Los Angeles County Super. Ct. No. GA078254)

APPEAL from a judgment of the Superior Court of the County of Los Angeles, Dorothy L. Shubin, Judge. Affirmed. David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.2 INTRODUCTION

A jury found defendant and appellant Ra ndal Ruiz (defendant) guilty of first degree burglary and second degree burglar y, and the trial court sentenced him to concurrent 35 years-to-life se ntences on each count. On a ppeal, his appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 ( Wende ) requesting that this court independently review the entire re cord to determine if there are any issues,
which if resolved in defenda nt’s favor, would require reve rsal or modification of the judgment. Accordingly, we notified defendant that he could brief a ny grounds of appeal, contentions, or arguments he wanted us to consider. As discussed below, notwithstanding two extensions of time within which to file a brief, defendant failed to timely submit a brief prior to the cause being submitted for decision. Based on our independent review of the en tire record, we conclude that there are no arguable issues on appeal and, for that r eason, affirm the judgment of conviction.

FACTUAL BACKGROUND

On October 23, 2009, Stephen Biskup was staying temporarily in a guesthouse
located behind the main house at 1453 Bellford Street, Pasa dena. There was a storage shed behind the guesthouse. That morning, between 7:00 and 8:00 a.m., Biskup “looked out on the porch to the backyard” and noticed that the gate to the yard, which had been closed the night before, was “s lightly open.” Biskup approa ched the gate, looked through it, and noticed a man with a backpack on a bicy cle about to leave. Biskup did not know the man, who said “Hi” and th en “took off on the bike.” A Sheriff’s deputy arrived later that morning and in terviewed Biskup. In October 2009, Mary Ann Shemdin owned a residential property located at 1453
and 1455 Bellford Street in Pasadena. There were two homes on the lot, a two car garage with a carport, and a storage shed at the back of the deep lot. Shemdin lived in one of the
homes and a male lived in the second one.3 On the morning of Oct ober 23, 2009, the man who lived in the second house contacted Shemdin about something that had o ccurred in the storage sh ed at the back of the lot. Following her disc ussion with the man, Shemdin went to inspect the storage
shed. She noticed that the do or to the shed, which was alwa ys locked, was open, as was a
window. When she entered th e shed, she observed that it had been “ransacked.” The shed had been “very full” with furniture, Christmas de corations, files, and boxes containing her daughter’s possessions. Her daug hter, Marie St. Claire , had moved out of state and left some of her possessions behind in the shed. Shemdin could see that “things [in the shed] had been gone through,” but she did not have a written inventory of her daughter’s possessions. Several items in th e shed had been moved or altered. After inspecting the shed, Shemdin ca lled the Sheriff’s Department, and a Sheriff’s deputy responded to ta ke a police report. As the deputy completed his report, a City of Pasadena police officer arrived and as ked Shemdin if she knew a Marie St. Claire.
When Shemdin told the officer that St. Claire was her daughter, he asked her if she recognized a computer. A few days later, Shemdin went to th e Pasadena Police Department and was shown certain items, including a computer a nd jewelry, among others. Of the items she was shown, Shemdin recognized the computer as her daughter’s. Shemdin had last seen her daughter’s computer, which was not operati ng properly, in the storage shed with her daughter’s other possessions. On October 23, 2009, Angele Ajamia n resided at 1447 Bellford Avenue, Pasadena. Her neighbor, Mary Ann Shemdin, lived next door. That morning between 7:00 and 8:00 a.m., Ajamian was in her fami ly room watching the news. From her window, she saw a man with a backpack going toward the back of the property where a rental unit was located. The man left a bicy cle and stood behind a big tree. Ajamian opened the door and asked, “‘Can I help you ?’” The man replied, “‘I’m looking for Hector.’” Ajamian said, “‘There is no Hect or here,’” and the man “took his bike and left.” A few days later, police officers show ed Ajamian a photo lineup and she identified4 defendant’s photograph as the man she saw in her backyard. Ajamian also identified
defendant in court as the ma n she saw that morning. On the morning of October 23, 2009, Frank Greer was home alone working in his
office at his residence located at 2305 Woodl yn Road, Pasadena. His office was adjacent to the laundry room in his garage and conn ected to the laundry room by a door. The laundry room could also be accessed through the garage by another door. At approximately 9:30 a.m., Greer heard a noise in the laundry room and looked up, but did not see anything. When he heard another no ise from the laundry room, he looked up again and saw the s ilhouette of a man through th e sheer white curtain on the door to the laundry room. Greer, who was ex pecting his wife, not a man, saw the male
silhouette touch the door knob and heard the knob “kind of tu rn a little bit.” Greer then said, “‘Hello,’” which cause d the man to “sort of [freeze]” and then leave.
Greer was “taken aback” and decided to investigate “what was going on.” He went through the laundry room into the gara ge and outside to the driveway through the open front garage door. There he obser ved defendant, wearing a bandana and a backpack, trying to free a bicy cle that was entangled in so me mesh netting in a tomato garden. After defendant freed the bicycle an d moved it into the dr iveway, he said, “‘I was just looking for Hector.’” Defendant th en mounted his bicycle and rode away. Greer called 911 and provided a descripti on of defendant. He informed the 911 operator that he was scheduled to leave for th e airport and was told that “they would send someone right over.” When a police officer re sponded, he told Greer that the police had found someone who matched the description Greer had provided to the 911 operator.
The officer asked Greer to acco mpany him to a location wher e they were detaining the man matching the description. The officer tr ansported Greer to the location where Greer was able to observe the man being detained wearing a bandana and identify him as the
man he had seen at his house. Greer also identified defendant in court as the man with the bicycle that he saw in his driveway. On October 23, 2009, City of Pasa dena Police Officer Roxanne Bevel was working patrol with her partner Office Burche tt. Shortly after 9:30 a.m., she received a5 radio broadcast regarding a burglar y. While the officers were en route to the scene of the burglary, they observed a male on a bicycle “w ho had a light gray covering over his head, [that] later was identified as a long-sleeved shirt.” The ma n generally fit the description of the burglary suspect that the officers were provided in the dispatch broadcast. Officer
Bevel identified defendant in court as the ma n they observed that morning. As the officers approached defendant, Officer Bevel noticed that he had a backpack on his back and was carrying a green bag. The officers detained defendant and recovered a “Radio Shack golf scope” and sc rewdriver from his rear pockets and black and purple gloves from his front pants pocket . Inside defendant’s backpack, Officer Burchett noticed “various tools, [a] screwdrive r, allen wrenches, . . . a couple of watches, a recorder, . . . and . . . miscellaneous other ite ms.” Inside the green bag, Officer Burchett
recovered a blue and silver la ptop and other items. Red bolt cutters were also recovered from the backpack. In additio n, the officers recovered jewelry from defendant’s person, including six rings, hoop earrings, three bracel ets, a pendant, and a chain, as well as a bicycle repair kit. The officers arrested and booked defendant. On October 23, 2009, City of Pasadena Police Officer Christopher Burchett was working patrol with his partner, Officer Beve l. The officers contacted defendant that morning and eventually arrested him. O fficer Burchett assisted Officer Bevel in searching defendant and inventorying all the items that the officers re covered from him. One of those items was a laptop computer. Officer Burchett powered on the computer and searched through it looking for a name. He found a resume with a name, Marie St. Claire, and an address, 1455 Bellford Avenue, Pasadena. Based on that information, Officer Burchett sent Officer Lopez to the a ddress in an effort to locate the owner. City of Pasadena Detective Richard Pippin investigated the burgla ry of the shed at 1453 Bellford Avenue, Pasadena. As part of the investigation, he spoke to Shemdin and
showed her items that were booked into ev idence as a result of defendant’s arrest. Shemdin identified the computer as belonging to her daught er, but none of the other items. Detective Pippin al so showed Ajamian a six-pack photo lineup. Ajamian identified the photograph of de fendant in that lineup.6 B. Defense Case Defendant called Mitchell Eisen as an expe rt to testify about various issues with the reliability of eyew itness identifications.

PROCEDURAL BACKGROUND

In a second amended information, the District Attorney charged defendant in count 1 with first degree burglary in violation of Penal Code section 459 1 and in count 2 with second degree burglary in violation of secti on 459. The District Attorney alleged
that defendant had suffered seve n prior violent or serious fe lony convictions within the meaning of sections 1170.12, subdivisions (a ) through (d) and 667, subdivisions (b) through (i). The District Attorney also a lleged that defendant suffered two convictions for which a prison term was served within th e meaning of section 667.5, subdivision (b). The District Attorney further alleged that de fendant had suffered two prior serious felony convictions within the meaning of section 667, subdivision (a)(1). Following trial, the jury found defendant guilty on both counts. In a subsequent court trial on the prior conviction allegations , the trial court found all of the prior conviction allegations true.
The trial court sentenced defendant on count 1 to a term of 25 years to life pursuant to the true findings on the prior strike convictions, plus a consecutive ten-year term pursuant to section 667, subdivision (a)(1), for an aggregate term on count 1 of 35 years to life. The trial court sentenced defe ndant on count 2 to th e same 35 years-to-life sentence as imposed on count 1 to run concurre nt to the sentence on count 1. The trial court also imposed, but stayed, additional tw o-year terms on each count pursuant to section 667.5, subdivision (b).

1 All further statutory citations are to the Penal Code unless otherwise indicated.7 DISCUSSION

In response to the brief subm itted by defendant’s counsel under Wende, supra, 25 Cal.3d 436, we independently examined the en tire record to determine if there were any arguable issues on appeal. Based on that inde pendent review, we have determined there are no arguable issues on appeal. We are ther efore satisfied that defendant’s appointed counsel has fully satisfied his responsibilities under Wende, supra, 25 Cal.3d 436. As noted above, on May 6, 2013, we gr anted defendant permission to file within 30 days, a letter brief raising a ny issues, arguments, or contentions that he wished to raise in support of his appeal. At defendant’s re quest, we granted him tw o extensions of time, totaling an additional 45 days, within which to file a lette r brief. Notwithstanding that
defendant’s last extension of time expired on July 15, 20 13, defendant did not submit a brief before that date. Instead, well after the cause was submitted for decision on August 5, 2013, he attempted to f ile without permission on Sept ember 3 and 23, 2013, letter briefs comprised of over 100 handwritten pages.
Because defendant’s letter briefs were submitted six to nine weeks late without permission and well after the cau se was submitted, we are ju stified in not considering
them. Even if we had cons idered the multitude of conten tions raised by those letter briefs, we would not reverse defenda nt’s judgment of conviction. As to the many claims of ineffective a ssistance of counsel asserted throughout those briefs, such claims are generally not co gnizable on a direct appeal, but rather are more appropriately raised on habeas cor pus. “‘To establish a violation of the constitutional right to effective assistance of co unsel, a defendant must show both that his counsel’s performance was defici ent when measured against the standard of a reasonably competent attorney and that counsel’s deficient performance resulted in prejudice to
defendant in the sense that it “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”’ ( People v. Kipp (1998) 18 Cal.4th 349, 366 [75 Cal.Rp tr.2d 716, 956 P. 2d 1169], quoting Strickland v. Washington [(1984)] 466 U.S. [668,] 68 6.) Preliminarily, we no te that rarely will an8 appellate record establish ineffect ive assistance of counsel. ( People v. Mendoza Tello (1997) 15 Cal.4th 264, 267-268 [62 Ca l.Rptr.2d 437, 933 P.2d 1134].)” ( People v. Thompson (2010) 49 Cal.4th 79, 122.) “We have repeatedly stressed ‘that “[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explana tion and failed to provide one, or unless there simply could be no satisfactor y explanation,” the claim on appeal must be rejected.’ ( People v. Wilson (1992) 3 Cal.4th 926, 936 [13 Cal.Rptr.2d 259, 838 P.2d 1212] quoting People v. Pope (1979) 23 Cal.3d 412, 426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].) A claim of ineffective a ssistance in such a case is more appropriately decided in a habeas corpus proceeding. ( People v. Wilson
, supra , at p. 936; People v. Pope
, supra , at p. 426.)” ( People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
As for the various other contentions i nvolving pretrial suppression motions, discovery issues, evidentiary rulings, jury instructions, a nd various other claimed legal errors, to the extent those contentions were not forfeited, defendant did not and cannot demonstrate that he was prejudiced by such cl aims of error. The evidence of defendant’s guilt was consistent and came from a variet y of credible sources, including two eyewitness identifications by Greer and Ajamia n, and the incrimina ting items recovered from defendant’s person, including St. Claire’s computer which had last been seen in the storage shed, the jewelry, and the burgl ary tools such as gloves, bolt cutters, screwdrivers, and wrenches. Given the streng th of the evidence of defendant’s guilt, the claimed errors could not have been prejudic ial. “[E]ven if the court’s ruling were deemed erroneous, it would not be prejudicial. Considering the consistent evidence of defendant’s guilt from a variety of sources, the outcome of the trial was not affected by the court’s ruling, either as a matter of reasonable probability under state law ( People v.
Watson (1956) 46 Cal.2d 818, 83 6 [299 P.2d 243]), or under the ‘harmless beyond a
reasonable doubt’ standard for federal constitutional error ( Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2 d 705, 87 S.Ct. 824].).” ( People v. Hartsch (2010) 49 Cal.4th 472, 497-498.) Based on our independent revi ew of the record, ev en assuming one or9 more of the claimed errors occurred, under any applicable standa rd, defendant was not prejudiced. As to the various sentencing errors that defendant raises, including his claims of evidentiary error in the court trial on the prior conviction a llegations, we have, as noted above, independently reviewed the record, including the record as it relates to the court trial on the prior convictions and defendant’s sentence, and have determined that there were no errors concerning the trial court’s admission of the documentary evidence in support of the prior conviction allegations 2 and no sentencing errors. 3 Accordingly, we affirm the judgment of convicti on from which defendant appeals.

DISPOSITION

The judgment of conviction is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

2 See, e.g., Penal Code section 969b; People v. Miles (2008) 43 Cal.4th 1074, 1082.

3 See, e.g., People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497 [trial court’s discretion to dismiss strike limited].