P. v. Lee

Filed 7/14/09 P. v. Lee CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

BACKGROUND

By an information filed in Lake County Superior Court on July 25, 2008, appellant, Quentin Michael Ray Lee, was charged with two counts of unlawful taking or driving of a vehicle (Veh. Code, 10851, subd. (a)) (count 1: 1984 Red Trail motorcycle; count 3: 1987 Honda motorcycle), and two counts of second degree burglary (Pen. Code, 459) (count 2: work shop; count 4: shed). On July 28, 2008, appellant pleaded not guilty to all charges. Appellant was notified of his right to file a supplemental brief on his own behalf but has not filed one. (People v. Wende (1979) 25 Cal.3d 436.)

In a negotiated disposition on September 2, 2008, appellant entered a guilty plea with a Harvey[1]waiver to counts 1 and 2, in exchange for dismissal of the other counts.

At sentencing on October 6, 2008, the court denied probation and sentenced appellant to the middle term of two years in prison for the unlawful taking or driving of a vehicle violation (Veh. Code, 10851, subd. (a)) (count 1), and a middle term of two years for the second degree burglary violation (Pen. Code, 459) (count 2), to be served concurrently with count 1. The court awarded a total of 205 days credit for time served, and ordered a payment of a restitution fine of $400 (Pen. Code, 1202.4, subd. (b)), a suspended restitution fee of $400 (Pen. Code,  1202.45), an assessment fee of $47 (Pen. Code, 1202.5), and a $20 court security fee (Pen. Code, 1465.8). The court reserved victim Jeffrey Keller restitution.

On October 15, 2008, appellant filed a timely notice of appeal.

STATEMENT OF FACTS

Appellant is a 21-year-old male. The following summary of the facts is taken from the reporters transcript of the preliminary hearing on July 18, 2008.

On August 27, 2005, at approximately 5:00 p.m., appellant went into a workshop on Elk Mountain Road in Lake County and stole a 1987 Fat Cat motorcycle owned by Jeffrey Keller. The workshop (also referred to as a barn in testimony) was located on land owned by Louise and Alex Suchan, and contained several motorcycles. Appellant drove the motorcycle to a levee behind the shop area where it fell over, stalling the engine. Unable to restart the Fat Cat motorcycle, appellant left it at the levee and returned to the workshop at approximately 8:00 p.m., where he stole a Honda 110 (a trail bike), owned by the Suchans.

The Suchanss grandson, Alex OMeara, and his mother heard the motorcycle start while at their own home up the road, approximately 500 to 1,000 feet away. Alex OMeara came down on his own motorcycle to investigate. OMeara saw appellant driving the Honda 110 away from the shop area and followed it until the driver, appellant, stopped. When OMeara asked appellant to return the bike to the workshop, appellant told him that he thought it belonged to appellants brother. OMeara convinced appellant to return it when he told him that it belonged to his grandfather and correctly recited the license plate number from memory. The two went back to the shop and replaced the bike. OMeara then dropped appellant off at a pay phone at a highway grocery store in Upper Lake because he didnt want to get appellant in trouble.

When OMeara returned to the workshop, he noticed that his friend Jeffrey Kellers bike was missing as wella 1987 Honda Fat Cat. OMeara called Keller, who confirmed that he did not know the whereabouts of the bike. Keller and another friend joined OMeara and the three returned to the pay phone where OMeara had dropped off appellant, who was still there and admitted to having seen a blue motorcycle on the levee behind the shop area. Unable to locate the bike at the levee, OMeara, Keller, and their friend returned to the phone booth and convinced appellant to come show them. Appellant took them to where the Fat Cat was on the levee; the motorcycle had damage and some parts had fallen off of it. After that, the three boys took appellant back to Upper Lake and dropped him off on Washington Street.

OMeara, Keller, and their friend decided to call the police a few days later after hearing that a third vehicle had been stolen from Upper Lake on the night of August 27. California Highway Patrol Officer Mark Barnes contacted Keller and OMeara at Upper Lake High School on August 31 and was told that OMeara had heard a motorcycle start up at 8:00 p.m. on August 27. Barnes then questioned Alexs mother, Mary OMeara, who confirmed that she had also heard a motorcycle start at 5:00 p.m. on the day in question but had thought nothing of it.

Later, Barnes investigated the third stolen vehicle and found that it was a 1987 Toyota that had been recovered by the Woodland Police Department. The person arrested for stealing the vehicle was appellant.

Officer Barnes returned to OMeara and Keller on September 2 with a DMV photo and a photographic lineup of six photos. After Barnes had given them a photographic lineup consisting of six different photos, OMeara recognized picture three as the person that had been riding the motorcycle, but Keller was only leaning toward photo three and wasnt entirely sure. At trial, Barnes pointed out appellant as the man in photograph three. He also testified that neither Louise Suchan nor Jeffrey Keller claimed to have given appellant permission to ride the motorcycles. Under cross-examination, Barnes admitted that he had not spoken to Alex Suchan at all, and that no fingerprints had been taken off the Fat Cat motorcycle. Officer Barnes was the only witness at trial.

Appellant is appealing the final judgment after a guilty plea with a Harveywaiver to counts 1 and 2 (count 1: unlawful taking of the 1984 Red Trail motorcycle; count 2: second degree burglary of the workshop). Counts 3 and 4 were dismissed (count 3: unlawful taking of the 1987 Honda motorcycle; count 4: second degree burglary of the shed). This appeal is based on the sentence and is authorized by California Rules of Court, rule 8.304(b).

DISCUSSION

Our independent review of the record reveals no arguable issues.

DISPOSITION

Accordingly, the judgment is affirmed.

_________________________

Lambden, J.

We concur:

_________________________

Kline, P.J.

_________________________

Richman, J.

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[1] See People v. Harvey (1979) 25 Cal.3d 754.