P. v. Barajas

Filed 8/29/06 P. v. Barajas CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Defendant Sergio Ortiz Barajas was charged by information No. CC595701 with one count of vehicle theft (Veh. Code, § 10851, subd. (a)). The information further alleged that defendant had served two prior prison terms (Pen. Code, § 667.5, subd. (b)).[1] Defendant was also charged by consolidated information No. CC588834,[2] with burglary of a vehicle (§§ 459, 460, subd. (b); count 1), petty theft with specified priors (§ 666; count 2), receiving stolen property (§ 496, subd. (a); counts 3, 6), misdemeanor being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 4), vehicle theft (count 5), and misdemeanor obstructing a peace officer (§ 148, subd. (a)(1); count 7). The consolidated information further alleged that defendant had served three prior prison terms (§ 667.5, subd. (b)).

On August 22, 2005, defendant filed a motion for substitution of counsel. (People v. Marsden (1970) 2 Cal.3d 118.) Following a hearing on August 23, 2005, the court denied the motion.

Jury trial began in case No. CC588834 on August 24, 2005. The testimony at trial was as follows. On the night of January 28, 2005, Dang Nguyen parked his 1993 Acura Integra in the carport of his San Jose home, leaving it unlocked. The car was gone the next morning and he reported the theft to the police. Inside his car were a spare car key, a gym bag, black leather gloves, and his license, checkbook and check card. The next day, the police contacted him and he identified his car. The spare key and his other personal property were missing from the car, but the car did not appear to be damaged in any way. Later that day, officers returned his gym bag and its contents to him. Nguyen testified that he does not know defendant and he did not give defendant permission to drive his car or take his personal property.

On January 29, 2005, a stereo and a black backpack were stolen from inside Guillermo Vasquez’s unlocked Mitsubishi Eclipse. The backpack contained a walkman, a sweater, and some paperwork with Vasquez’s name on it. Later in January the police contacted Vasquez and he went to the police department, where he identified his backpack. The backpack still contained his paperwork, but he has not seen his stereo again. Vasquez testified that he does not know defendant and did not give him permission to have his backpack.

Around 7:00 a.m. on January 30, 2005, an officer stopped defendant, who was driving an Acura Integra, for speeding. Defendant got out of the car and ran. The officer pursued defendant for a short distance, but he got away. The officer returned to the Acura and determined that it had been stolen. Inside the car the officer found a wallet containing defendant’s driver’s license and social security card, and some gloves. The officer also found stereo equipment, speakers, CDs, and two backpacks. Inside one of the backpacks was paperwork belonging to Vasquez. The officer contacted Vasquez, who told him that he had been the victim of a vehicle burglary but that he had not reported it. Vasquez identified his backpack but the owner of the stereo equipment found in the Acura was not found.

The officer searched defendant’s residence, where he found a gym bag belonging Nguyen, the owner of the Acura. Nguyen was contacted and identified the bag as belonging to him.

Around 3:00 a.m. on February 25, 2005, Antonio Escobar looked out a window of his San Jose home and saw a light on inside his 1996 Astro van. He also saw that there was someone inside the van, although the van had been locked the night before. He told his wife to call the police, then he, his son, and his son-in-law went outside. They held the van doors closed, trapping the man inside. The police arrived after about ten minutes, removed the man from the van, handcuffed him, and placed him in a patrol car. The man was wearing one glove. Another pair of gloves, a watch, a wallet belonging to David Villa Gomez, a buck knife, and a screwdriver were found in his pockets. At trial, Escobar identified defendant as the man police removed from his van and testified that defendant did not have permission to be in it.

Inside the van, officers found a glove matching the one defendant was wearing, a CD case, two flashlights and a screwdriver, none of which belonged to Escobar. Escobar saw scratch marks around the van’s stereo and on the edge of the driver’s side door, and he had to have the lock on the door fixed later because the door would not close.

Officers investigated whether any other cars in Escobar’s neighborhood had been disturbed. They found an unlocked 1993 BMW parked nearby with two duffel bags, a bicycle, and a tool belt lying behind it in the street. They contacted the owner of the BMW, Thanh Ho, who came to the car and identified one duffel bag and the tool belt as his. Ho also identified as his the watch and screwdriver officers found in defendant’s pockets. Ho had parked his BMW in the street around 6:00 p.m. on February 24, 2005, leaving it unlocked and with his watch and a red duffel bag containing his tool belt and tools inside. Ho testified that he does not know defendant and did not give him permission to have his watch.

Officers contacted Gomez on February 25, 2005, and asked him if his wallet was missing. Gomez said that he had lost it about three weeks earlier. He sometimes kept his wallet, containing his driver’s license, social security card, and credit cards in his car. Gomez testified that he does not know defendant and did not give him permission to have the wallet.

Officer Mario Tatum testified as an expert in recognizing persons under the influence of methamphetamine that when he removed defendant from Escobar’s van, he noticed that defendant was sweating, that defendant’s eyes were fluttering and did not respond when a flashlight was shined into them, and that defendant had an elevated pulse. Based on his training and experience the officer believed defendant to be under the influence of a stimulant. A urine sample taken from defendant later tested positive for methamphetamine, which is a stimulant.

Outside the presence of the jury, defendant admitted having previously been convicted of violating section 496 and having served three prior prison terms.

On August 31, 2005, the jury found defendant guilty of all seven counts in consolidated information No. CC588834. On October 13, 2005, defendant entered a negotiated guilty plea to the Vehicle Code section 10851, subdivision (a) offense charged in case No. CC595701, which related to defendant’s driving of his mother’s car without her permission. Conditions of the plea included a two-year prison sentence to run concurrent to the sentence to be imposed in case No. CC588834, and custody credits from February 25, 2005. On December 9, 2005, the court granted the prosecutor’s motion to dismiss one of the prison priors in case No. CC588834, and sentenced defendant to six years in state prison in case No. CC588834, with a concurrent two-year term in case No. CC595701. The court also imposed various fines and fees.

Defendant filed a timely notice of appeal in both case No. CC588834 and case No. CC595701. We appointed counsel to represent defendant in this court. Appointed counsel has filed an opening brief which states the cases and facts and identifies three “points for review,” but includes no argument. The points for review are: “A. Did the prosecution fail in its proof that Dang Nguyen was the owner of the same Acura Integra which [defendant] was alleged to have driven on January 30, 2005?

B. Did the giving of CALJIC 2.15 . . . allow the jury to engage in a permissive inference that was not ‘by reason and common sense justif[ied] in light of the proven facts’ before it, in contravention of Francis v. Franklin (1985) 471 U.S. 307, 314-315?

C. Did the trial court err in failing to appoint substitute counsel after [defendant’s] June 28 and August 22-23, 2005 motions pursuant to People v. Marsden (1970) 2 Cal.2d 118?”

We notified defendant of his right to submit written argument in his own behalf within 30 days. That time has elapsed and we have received no response from defendant. Pursuant to People v. Wende (1979) 25 Cal.3d 436, we have reviewed the entire record and counsel’s “points for review” and have concluded that there is no arguable issue on appeal.

The judgments are affirmed.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

__________________________

MIHARA, J.

_________________________

MCADAMS, J.

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[1] Further unspecified statutory references are to the Penal Code.

[2] Case No. CC588834 was consolidated with case No. CC583472.