File 10/20/15 P. v. Paopao CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

MATTHEW F. PAOPAO,

Defendant and Appellant.

 B262254

 (Los Angeles County

 Super. Ct. No. NA100450)

APPEAL from a judgment of the Superior Court of Los Angeles County. 

Tomson T. Ong, Judge. Affirmed.

Christopher Love, under appointment by the Court of Appeal, for Defendant and 

Appellant.

No response by Plaintiff and Respondent.

__________________________
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Defendant was initially charged by felony complaint with attempted carjacking. 

(Pen. Code, §§ 664/215, subd. (a).) After a preliminary hearing, he was charged by 

information with attempted carjacking, attempted robbery (Pen. Code, §§ 664/211), and 

criminal threats (Pen. Code, § 422, subd. (a)). It was also alleged that defendant suffered 

a prior conviction of robbery – as a strike (Pen. Code, § 667, subds. (b)-(j)), a five-year 

prior (Pen. Code, § 667, subd. (a)), and a prior prison term (Pen. Code, § 667.5, 

subd. (b)).

Before trial, defendant filed a Marsden motion to replace his appointed counsel, 

on the basis that his attorney was not conducting an adequate investigation. (People v. 

Marsden (1970) 2 Cal.3d 118.) The motion was denied. The trial on the prior conviction 

allegations was bifurcated. 

At trial, the prosecution’s evidence revealed the following facts. On October 4, 

2014, at 10:00 p.m., defendant – who was shirtless – approached the victim Javier 

Vasquez in the driveway to the latter’s apartment. Vasquez was leaning on his car; the 

garage was open and there was a bicycle within. Defendant spoke to Vasquez in English; 

Vasquez is a Spanish-speaker but speaks some English. Defendant said to Vasquez, “

‘Motherfucker, you have everything, you have it.’ “ Defendant raised his fists in a 

fighting stance and demanded the bicycle from Vasquez. Vasquez said it didn’t work. 

Defendant then said, “ ’Give me the keys to your car.’ ” Defendant made Vasquez empty 

his pockets; Vasquez did, but hid the car key. Defendant then started hitting and kicking 

Vasquez. Vasquez picked up a pipe in the garage with which to defend himself. 

Defendant displayed his tattoos and told Vasquez he was in a gang. He said, “ ’I’m going 

to come and kill you.’ ” Vasquez was not alone during the encounter; his brother-in-law, 

Luis, was there. Vasquez and Luis together scared defendant away. Luis did not testify 

at trial, nor did he give a statement to police. 

Although Vasquez did not know it at the time, his neighbor, Lanisha Weekes, saw 

the encounter from her window and called 911. At trial, she confirmed that defendant 

demanded Vasquez’s car and threatened to “ ’jack’ ” it. She also confirmed that 

defendant said he was from a gang and threatened to come back with his “ ’homies.’ ” 
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The 911 call had been recorded; the tape was played for the jury.1 In the call, Weekes 

narrated the events for the 911 operator as they happened. Among other things, Weekes 

told the operator, “ ’He’s saying I’m gonna jack your car, he said mother fucker, give me 

your keys or I’m gonna have to call my homies from I don’t even know what. He 

literally is like swinging on this man right now.’ ” Weekes repeatedly told the operator 

that the man threatening her neighbor was drunk. The 911 operator notified police, and 

defendant was arrested less than two blocks from the scene. Vasquez identified 

defendant in a field show up. 

Defendant did not testify at trial. Defendant initially chose to testify, and the court 

ruled that, if he did, his prior robbery conviction would be admissible. His attorney 

encouraged him to testify anyway, and advised him that if he did not testify, she would 

not be calling a potential defense witness, Callie Gaoa. Defendant chose to exercise his 

constitutional right not to testify. 

Defendant was convicted as charged. At sentencing, defendant admitted the prior 

conviction. He made a Romero motion, which was denied. (People v. Superior Court 

(Romero) (1996) 13 Cal.4th 497.) He was sentenced on attempted carjacking to the 

upper term of 4 1/2 years, doubled (for the strike), plus 5 years (for the five-year prior) 

for a total sentence of 14 years in prison. Sentence on the remaining two counts was 

stayed under Penal Code section 654. Defendant filed a timely notice of appeal.

On August 3, 2015, defendant’s appointed counsel filed a brief pursuant to People 

v. Wende (1979) 25 Cal.3d 436 (Wende) in which no issues were raised. The brief 

included a declaration from counsel that he had reviewed the record and had sent 

defendant a letter advising him of his intention to file a Wende brief and that he could file 

a supplemental brief if he chose to do so. That same day, this court sent defendant a 

 

1 Defendant asserts his counsel rendered ineffective assistance by failing to object to 

the recording as hearsay. Counsel objected before trial in an Evidence Code section 402 

hearing. The court concluded the recording was admissible as present sense impression 

(spontaneous statement) (Evid. Code, § 1240) and/or past recollection recorded (Evid. 

Code, § 1237), as long as Weekes testified. This was not error.
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letter advising him that a Wende brief had been filed and that he had 30 days to submit a 

brief or letter raising any issues he wished us to consider. 

On August 24, 2015, defendant filed a supplemental brief (brief) purporting to 

raise the issues of insufficiency of the evidence, actual innocence, ineffective assistance 

of counsel, and prosecutorial misconduct. On September 24, 2015, defendant filed an 

additional motion (motion), asserting ineffective assistance of appellate counsel for 

failing to brief the issues itemized in defendant’s supplemental brief. Defendant’s motion 

goes into much greater detail on defendant’s arguments than defendant’s brief. (In his 

motion, defendant asserts that appellate counsel provided him the record without

sufficient time to prepare his brief.) We therefore consider defendant’s motion as a 

further brief on appeal.2

Defendant’s appeal lacks merit. We have examined the entire record and are 

satisfied that defendant’s attorney has fully complied with his responsibilities and that no 

arguable issues exist. (Wende, supra, 25 Cal.3d 436.) The issues raised by defendant are 

not arguable. Nearly all of defendant’s arguments rely on his view of the evidence. 

Defendant takes the position that his encounter with Vasquez was a failure to 

communicate which spun out of control. Defendant represents that he had simply run out 

of gas and had asked if Vasquez could give him a ride to the gas station to get fuel, or if 

he could borrow the bicycle to do so. He had even offered Vasquez money for his 

 

2 To the extent defendant’s motion seeks relief for ineffective assistance of appellate 

counsel, the motion is denied. “To prevail on a claim of ineffective assistance of counsel, 

the defendant must prove: (1) his or her attorney’s representation was deficient in that it 

fell below an objective standard of reasonableness under prevailing professional 

standards; and (2) his or her attorney’s deficient representation subjected him or her to 

prejudice. [Citations.] Prejudice means a ‘reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.’ [Citation.] 

A reasonable probability means a ‘probability sufficient to undermine confidence in the 

outcome.’ [Citation.]” (People v. Najera (2006) 138 Cal.App.4th 212, 225.) Even if 

appellate counsel fell below an objective standard of reasonableness, there is no showing 

of prejudice. As none of Paopao’s arguments are meritorious, it would make no 

difference if appellate counsel had pursued them.
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assistance. Defendant asserts that Vasquez and Weekes lied at trial, and attempts to point 

out, in great detail, every contradiction between: Vasquez’s preliminary hearing

testimony and his trial testimony; Weekes’s trial testimony and the recording of her 911 

call; Vasquez’s trial testimony and Weekes’s trial testimony; and the trial testimony and 

the police report.3 To the extent defendant argues insufficiency of the evidence and 

actual innocence, it is apparent that, despite any contradictions in the evidence, the jury 

chose to believe the testimony of Vasquez and Weekes, which was corroborated by the 

911 recording, that defendant did, in fact, attempt to obtain the victim’s car and bicycle 

by force or violence. To the extent defendant argues ineffective assistance of counsel 

based on trial counsel’s failure to establish that the witnesses were lying, we are 

convinced that defense counsel properly challenged the witnesses’ credibility and argued 

the issue to the jury. Finally, to the extent defendant relies on the contradictions in the 

evidence to establish prosecutorial misconduct for convicting him based on false or 

perjured testimony, defendant’s arguments establish innocent misrecollection at most, not 

knowingly false testimony.

Defendant’s remaining arguments are similarly unmeritorious. Defendant argues 

ineffective assistance of counsel for trial counsel’s failure to find Luis, or call Kaila Gaoa 

to testify in his defense. There is no evidence in the record that trial counsel did not 

make reasonable efforts to find Luis. Defense counsel made a tactical decision to not call 

Gaoa when defendant chose not to testify; there is nothing in the record showing that this 

tactical decision was beyond objective standards of reasonableness. Defendant also 

challenges trial counsel’s decision to argue to the jury, based on Weekes’s observations 

in the 911 call, that defendant may have been too drunk to form the specific intent to rob 

or carjack. Yet this, too, was a legitimate tactical decision based on the state of the 

record. Finally, defendant challenges the variance between the original complaint (which 

 

3 The police report was not introduced into evidence at trial. On appeal, defendant 

relies on two pages of the police report, taken out of context, which set forth defendant’s 

explanation (to the police) of his encounter with Vasquez. Defendant’s statements in the 

police report are clear hearsay; there is no basis on which defendant’s counsel could have 

obtained their admission at trial without his testimony.
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charged only carjacking) and the information (which added robbery and criminal threats). 

“[A]n offense not charged in the felony complaint nonetheless can be charged in the 

information if shown by the evidence at the preliminary hearing and if transactionally 

related to the crime or crimes for which defendant was held to answer.” (People v. 

Thiecke (1985) 167 Cal.App.3d 1015, 1017, fn. 1.) There was no error.

DISPOSITION

The judgment is affirmed.

RUBIN, ACTING P. J.

WE CONCUR:

FLIER, J.

GRIMES, J.