Filed 1/24/20 P. v. Wu CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

NAN WU,

Defendant and Appellant.

H046721

(Santa Clara County

Super. Ct. No. B1685271)
Defendant Nan Wu was convicted after a bench trial of one count of grand theft of personal property of a value over $950 (Pen. Code, §§ 484, 487, subd. (a)). Wu was sentenced to two years in county jail and one year of mandatory supervision. On appeal, her counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared that Wu was notified that an independent review under Wende was being requested. Wu submitted a letter brief arguing that her trial counsel erroneously told her that a bench trial would be “good” for her case, trial counsel spent only three hours reviewing her case before trial, and the witnesses that testified against her were not credible.

Pursuant to Wende, we have reviewed the entire record and have concluded there are no arguable issues. We will provide “a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed.” (People v. Kelly (2006) 40 Cal.4th 106, 110.) Pursuant to Kelly, we will consider Wu’s letter brief and will explain why we reject her contentions. (Id. at p. 113.)

BACKGROUND

1. The Information
2.
On June 22, 2017, an information was filed charging Wu with one count of grand theft of personal property of a value over $950 (§§ 484, 487, subd. (a)). The information further alleged that Wu had a prior prison conviction (§ 667.5, subd. (b)).

On April 23, 2018, Wu waived her right to a jury trial and agreed to a bench trial.

3. Evidence Adduced at Trial
4.
Minh Lam met Wu in 2014 at a drug rehabilitation program that he attended with her. Lam had a criminal history, including convictions for grand theft and sale and possession of controlled substances. During the course of the drug rehabilitation program, Wu learned that Lam was interested in purchasing a home. Wu told Lam that she had contacts in the real estate business and could help arrange a favorable loan rate for him. Wu did not follow through with her proposals. After the program ended, Lam maintained contact with Wu. Lam denied ever discussing laundering drug proceeds through a real estate transaction with Wu.

In 2015, Lam and his wife, Sandy Do, started the process of buying a house. Do prequalified to purchase a home in the $750,000 to $800,000 price range.

On May 7, 2015, Wu met with Do and Lam and offered the couple a $750,000 loan at a 2 percent interest rate over a term of 25 years in exchange for a $10,000 fee. The agreement was memorialized on a notepad. That same day, Do and Lam gave Wu $8,000, composed of a $5,000 money order and $3,000 in cash. Do paid Wu the remaining $2,000 balance after a few days. Wu, Do, and Lam never signed a deed of trust or any paperwork that described what would happen if Do and Lam defaulted on the loan. The couple agreed that Wu’s name would be on the purchase contract until the seller received payment. Afterwards, Wu’s name would be taken off the contract.

Do and Lam proceeded to look at houses but discovered that $750,000 was not enough to purchase the kind of house that they wanted. The couple spoke with Wu, and Wu offered to increase the loan amount in exchange for $5,000. Later, Do and Lam paid Wu the additional $5,000. Wu also referred the couple to Jennifer Lin, a real estate agent. Lin had worked with Wu in the past and had helped Wu make an unsuccessful offer on a property. Do and Lam met with Lin and decided to proceed with her as their agent.

In June or July 2015, Do and Lam found a house in San Jose that they liked and made an offer. Wu told Do and Lin that she would fund the purchase price using her money. Lin helped put together a purchase contract for approximately $1.2 million in the presence of Do, Lam, and Wu. The purchase contract was dated July 20, 2015.

Lin asked Wu to verify that she had the funds to purchase a $1.2 million home. Wu used Lin’s office computer, logged into a bank account, and showed Lin that she had over $1 million in the account. Wu printed out a copy of the bank statement for Lin, which reflected a $1.56 million ending balance. Lin noticed that the bank statement misspelled Wu’s last name as “Wy,” and Lin asked Wu about this discrepancy. Wu told Lin that the bank sometimes had too many people with the last name “Wu,” so her last name was spelled “Wy” on the account. The bank statement Wu provided had “clothing monster t-shirts” and talked about “buying flowers” on one side of the page. The bottom of the statement reflected that it was retrieved from Yahoo.com.

According to Lin, she believed that Wu would be the sole cash buyer of the property. Lin was told by Do and Lam that Wu’s name would be removed from the property’s title at a later date, and they would also generate a deed of trust at a later date. Lin whited out some of Wu’s identifying information from the bank statement that Wu had provided, and the statement was provided to the sellers as part of Do and Lam’s offer.

Subsequently, the offer was accepted by the seller. To facilitate the transaction, Do deposited $31,000 of her own money into an escrow account. By the close of escrow in August, Wu failed to fund the loan. Lin negotiated an extension, but Wu never funded the loan. When Lin called Wu, Wu said she was in the hospital. Wu later refunded Do and Lam $2,900, but the couple never received a refund for the remaining $12,100 that they had paid her. Lam testified that Wu told him that the $2,900 payment was compensation for some work that Lam had done for Wu. The home purchase never went through. By the time of Wu’s trial, Do’s $31,000 remained in escrow and was the subject of arbitration.

As part of the investigation into Wu’s case, Sunnyvale Department of Public Safety Lieutenant Jonathan Griffith interviewed Lin. Lin told Griffith that she had never met Lam and that Lam had never been to her office.

5. The Verdict, Motion for New Trial, and Sentencing
6.
After the bench trial, the trial court found Wu guilty of grand theft of personal property over $950 (§§ 484, 487, subd. (a)). The trial court further found the allegation that Wu had a prior prison conviction under section 667.5, subdivision (b) not to be true.

Subsequently, Wu filed a motion for a new trial. In her new trial motion, Wu argued that the prosecutor committed misconduct when he released Lieutenant Griffith as a witness without the defense’s knowledge or consent, the trial court erred by ruling that Griffith’s additional testimony would have been irrelevant and inadmissible hearsay, the trial court erred by prohibiting the defense from exploring allegedly perjurious testimony provided by Lam, and the trial court erred by not permitting the defense to recall Griffith to examine some of Wu’s handwritten notes. The trial court denied the new trial motion after finding that it had no merit.

On January 17, 2019, the trial court sentenced Wu to two years in county jail followed by one year of mandatory supervision. As a condition of Wu’s mandatory supervision, the trial court ordered her to pay $12,100 in restitution to Do and Lam, imposed a $300 restitution fine (§ 1202.4, subd. (b)(2)), and imposed but suspended a $300 mandatory supervision revocation restitution fine (§ 1202.45). The trial court separately imposed the following fines and fees: a $40 court operations assessment (§ 1465.8), a $30 criminal conviction assessment (Gov. Code, § 70373), a $129.75 criminal justice administration fee (Gov. Code, §§ 29550, 29550.1, 29550.2), and a $30 per month mandatory supervision fee (§ 1203.1b). The trial court awarded Wu a total of 469 days of presentence credits, consisting of 235 days of actual custody and 234 days of conduct credits.

DISCUSSION

First, Wu’s letter brief argues that her trial counsel erroneously told her that a bench trial would be “good” for her case and that trial counsel spent only three hours reviewing her case before trial.

We reject Wu’s claims of ineffective assistance of counsel because they are not supported by the record. “If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 746.) The record reflects that Wu acknowledged that trial counsel spoke to her about waiving her right to a jury trial, and Wu does not otherwise provide evidence that trial counsel’s advisement was somehow deficient. Furthermore, Wu’s argument that trial counsel spent only three hours reviewing her case is based on matters outside of the record, which we cannot consider on appeal. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267 [claims of ineffective assistance of counsel based on matters outside the appellate record are “more appropriately litigated in a habeas corpus proceeding”].)

Second, Wu argues that the witnesses that testified against her, Do, Lam, and Lin, were not credible. However, as the reviewing court, we do not reweigh the evidence or resolve conflicts in the evidence. (People v. Young (2005) 34 Cal.4th 1149, 1181 (Young).) “ ‘[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.’ ” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

Moreover, to the extent that Wu’s argument is a challenge to the sufficiency of the evidence to support her conviction, having reviewed the testimony provided by the witnesses at trial and viewing the evidence in the light most favorable to the prosecution, we conclude that substantial evidence supports the trial court’s guilty verdict. (Young, supra, 34 Cal.4th at p. 1180.) The relevant inquiry is whether “any rational trier of fact could have found the elements of the offense beyond a reasonable doubt.” (Ibid.) Here, the evidence adequately supported the trial court’s conclusion that Wu committed grand theft of personal property.

In addition to the arguments set forth in Wu’s letter brief, we have independently reviewed the record pursuant to Wende and Kelly. We find there are no arguable issues on appeal.

DISPOSITION

The judgment is affirmed.

Premo, Acting P.J.

WE CONCUR:

Elia, J.

Mihara, J.

People v. Wu

H046721