THE PEOPLE v. DAVION DESHON THORNTON (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Davion Deshon Thornton appeals from the judgment entered following his conviction for petty theft with a prior theft-related conviction.   No meritorious issues have been identified following a review of the record by Thornton's appointed counsel and our own independent review of the record and analysis of the multiple contentions presented by Thornton in a handwritten supplemental brief.   We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On April 29, 2010 Thornton was charged by an amended information with second degree robbery (Pen.Code, § 211),¹ second degree burglary (§ 459) and petty theft with a prior theft-related conviction (residential burglary) (§§ 484, subd. (a), 666).   The information specially alleged as to the robbery count that Thornton had suffered a prior serious felony conviction (residential burglary) within the meaning of section 667, subdivision (a)(1), and as to all counts that he had suffered a prior serious or violent felony conviction within the meaning of the “Three Strikes” law (§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)).

Thornton was represented by appointed counsel.   His two motions to replace appointed counsel (People v. Marsden (1970) 2 Cal.3d 118 (Marsden )) were heard and denied by two different bench officers.

On the morning of trial Thornton waived his right to a jury trial and admitted he had suffered the burglary conviction for the purpose of section 666.   The trial court cautioned the prosecutor he could only refer during trial to “petty theft with a prior” and could not mention the prior felony itself, residential burglary.   Jury trial began on April 29, 2010.

According to the People's evidence, on September 16, 2009 Dave Styskel, a loss prevention officer at Vallarta Supermarket, noticed Thornton in the laundry detergent aisle.   Thornton selected a bag of detergent, put it down the front of his pants and left the store without paying.   Styskel followed Thornton outside, identified himself and asked Thornton to return with him to the store.   Thornton ran off;  Styskel pursued Thornton to a nearby laundromat.   Thornton stopped outside the laundromat, charged Styskel and hit him in the face before fleeing.

Deputy sheriffs called to the scene traced Thornton to a nearby restaurant after reading text messages on a cell phone found in a car occupied by several other suspects.   One text message read, “ ‘Are the cops still there?” ’   Another message indicated the sender was waiting to be picked up at the Doublez Restaurant.   Deputies went to the restaurant and took Thornton into custody.   Following his arrest, Thornton was advised by Deputy Sheriff Kaylee Volk of his right to remain silent, to the presence of an attorney and, if indigent, to appointed counsel (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] ).   After waiving those rights, Thornton admitted he had stolen the laundry detergent from Vallarta Supermarket.   Thornton explained he wanted to wash his clothes at the laundromat, but did not have any detergent or money.   Thornton denied hitting Styskel.

At the close of the People's evidence, Thornton's motion for judgment of acquittal for insufficient evidence (§ 1118.1) was heard and denied.   Thornton neither testified nor presented other evidence in his defense.

The jury acquitted Thornton of robbery, but found him guilty of petty theft, as a lesser included offense of that crime.   The jury also found him guilty of petty theft as separately charged.   The trial court found the jury hopelessly deadlocked on the count of second degree burglary and declared a mistrial as to that count.

After waiving his right to trial, Thornton admitted the prior burglary conviction for purposes of the Three Strikes law.   Thornton's motions to dismiss the prior strike enhancement (People v. Superior Court (Romero ) (1996) 13 Cal.4th 497) and for a new trial were heard and denied.   He was sentenced to an aggregate state prison term of six years for petty theft with a prior theft- related conviction (double the upper term of three years).   Thornton was awarded a total of 480 days of presentence custody credit.   The trial court ordered him to pay a $30 court security fee, a $30 criminal conviction assessment, a $10 crime prevention fine and a $1,200 restitution fine.   A parole revocation fine was imposed and suspended pursuant to section 1202.45.²

DISCUSSION

We appointed counsel to represent Thornton on appeal.   After examination of the record counsel filed an opening brief in which no issues were raised.   On December 22, 2010 we advised Thornton he had 30 days within which to personally submit any contentions or issues he wished us to consider.   We received a handwritten supplemental brief in which Thornton challenged his conviction on a number of grounds.   Although none of Thornton's claims presents an arguable issue, pursuant to People v. Kelly (2006) 40 Cal.4th 106, 110, 120-121, we identify Thornton's contentions and explain the reasons they fail.

1. Sufficiency of the Evidence

Substantial evidence supports the jury's finding that Thornton committed the crime of petty theft.  (People v. Zamudio (2008) 43 Cal.4th 327, 357.)   Pointing to what he perceives as inconsistent or suspect testimony of prosecution witnesses, Thornton argues the evidence is insufficient that he accomplished a “taking” of any merchandise from the Vallarta Supermarket.   However, Styskel's testimony describing Thornton's conduct inside the store, as well as Thornton's subsequent admission to police, constitute sufficient evidence to support the verdict.  (Ibid.) Determining witness credibility is the exclusive province of the trier of fact.  (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)   Nothing in the record suggests Styskel's testimony was inherently improbable or physically impossible.  (See People v. Elwood (1988) 199 Cal.App.3d 1365, 1372.)

2. Purported Violation of Miranda Rights

Thornton claims his post-arrest statements to the police were obtained in violation of Miranda v. Arizona, supra, 384 U.S. 436.   Thornton insists he made no such statements;  Deputy Sheriff Volk simply fabricated them.   This contention does not concern Thornton's rights under Miranda;  instead it relates to Volk's credibility, which was a question for the jury.

3. Purported Brady Error

Thornton argues the People's failure to disclose to the defense his post-arrest admissions constituted error under Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215].  Brady, however, concerns the failure to disclose evidence favorable to the accused that is material to guilt or to punishment.  (Id. at p. 87.)   Thornton's admissions were not exculpatory evidence;  Brady is inapposite.   Thornton also challenges Deputy Sheriff Volk's failure to record his post-arrest admissions.   His defense counsel attorney thoroughly cross-examined Volk on this point.   Again, any issue of credibility was for the jury to decide.

4. Claims of Marsden Error

Thornton's complaints at each Marsden pretrial hearing were essentially the same:  Defense counsel had refused to contact friends who could substantiate Thornton's version of events;  and he had been rude to Thornton, as well as to Thornton's family and friends.   Responding to these complaints, Thornton's counsel told each bench officer he had interviewed Thornton's friends and their version of events contradicted Thornton's.   Counsel also acknowledged he was no longer communicating with members of Thornton's family, who were upset with the proceedings.³

Thornton claims the trial court improperly denied his Marsden motions.   “Replacing counsel lies within the court's discretion.  ‘The court does not abuse its discretion in denying [a Marsden ] motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel.’ ”  (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1003.)   Thornton is unable to show any such substantial impairment here.

5. Purported Yurko Error

Thornton contends his admission of his prior conviction for residential burglary for the purpose of trial on the charge of petty theft with a prior-theft related conviction was invalid due to an inadequate advisement of constitutional rights (see In re Yurko (1974) 10 Cal.3d 857, 863 (Yurko )).⁴  He also appears to contend that, prior to admitting the prior conviction for residential burglary at sentencing, he was not advised he would face the possibility of enhanced punishment under the Three Strikes law.   The record fails to support these claims.   Thornton was given a complete advisement prior to admitting the residential burglary conviction (on the advice of his attorney) before the start of the jury trial.   At sentencing, Thornton was given another complete advisement prior to admitting the conviction for purposes of the Three Strikes law.

6. Claims of Ineffective Assistance of Counsel

Thornton's remaining claims are based on the purported ineffective assistance provided by his defense counsel.   Specifically, Thornton argues counsel improperly failed to file a motion for a new trial or to argue his oral motion, to challenge the admissibility of his post-arrest statements to police, to call defense witnesses, to object to any reference to the charge of petty theft “with a prior,” to argue there was no “taking,” to raise Yurko error or to argue to the jury the prosecution's failure to prove the charges beyond a reasonable doubt.   The record on appeal is simply insufficient to overcome the presumption defense counsel performed effectively and his actions were a matter of sound trial strategy.  (Strickland v. Washington (1984) 466 U.S. 668, 686, 689-690 [104 S.Ct. 2052, 80 L.Ed.2d 674];  People v. Prieto (2003) 30 Cal.4th 226, 261.)

In sum, we have examined the entire record and are satisfied Thornton's attorney fully complied with the responsibilities of counsel and no arguable issues exist.  (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756];  People v. Kelly, supra, 40 Cal.4th 106;  People v. Wende (1979) 25 Cal.3d 436, 441.)

DISPOSITION

The judgment is affirmed.

We concur:

FOOTNOTES

FN1. Statutory references are to the Penal Code..  FN1. Statutory references are to the Penal Code.

FN2. The trial court also found Thornton had violated probation in Los Angeles Superior Court case No. PA058427 (residential burglary), refused to reinstate probation and ordered executed the previously stayed state prison term of six years, to be served concurrently with the sentence imposed in Los Angeles Superior Court case No. MA046895..  FN2. The trial court also found Thornton had violated probation in Los Angeles Superior Court case No. PA058427 (residential burglary), refused to reinstate probation and ordered executed the previously stayed state prison term of six years, to be served concurrently with the sentence imposed in Los Angeles Superior Court case No. MA046895.

FN3. At one point during the pretrial proceedings, the trial court ordered Thornton's mother excluded from the courtroom for attempting to communicate with Thornton and to record the proceedings on her cell phone.   In addition, the court admonished Thornton's stepfather, who had also attempted to record the proceedings..  FN3. At one point during the pretrial proceedings, the trial court ordered Thornton's mother excluded from the courtroom for attempting to communicate with Thornton and to record the proceedings on her cell phone.   In addition, the court admonished Thornton's stepfather, who had also attempted to record the proceedings.

FN4. Yurko error occurs when a court fails to “advise the defendant and obtain waivers of (1) the right to a trial to determine the fact of the prior conviction, (2) the right to remain silent, and (3) the right to confront adverse witnesses.”  (People v. Mosby (2004) 33 Cal.4th 353, 356.).  FN4. Yurko error occurs when a court fails to “advise the defendant and obtain waivers of (1) the right to a trial to determine the fact of the prior conviction, (2) the right to remain silent, and (3) the right to confront adverse witnesses.”  (People v. Mosby (2004) 33 Cal.4th 353, 356.)

WOODS, J. JACKSON, J.