P. v. Maldonado

Filed 7/17/06 P. v. Maldonado CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Erik Michael Kaiser, Judge. Affirmed with directions.

ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. Erik Michael Kaiser, Judge. Petition denied.

David Blair-Loy, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Plaintiff and Respondent.

A jury found defendant and appellant Jose Maldonado guilty of unlawfully taking a vehicle. (Veh. Code, § 10851, subd. (a).) In a bifurcated proceeding, the jury found true the allegation that defendant had two prior strike convictions (Pen. Code, §§ 667, subds. (c) & (e)(2)(A) & 1170.12, subd. (c)(2)(a)), and two prior prison term convictions (Pen. Code, § 667.5, subd. (b).). The trial court struck one of the prior strikes and imposed a state prison term of six years, plus one year for each of the prior prison term enhancements, for a total term of eight years.

On appeal and in a writ of habeas corpus, defendant argues that his trial attorney provided ineffective assistance of counsel (IAC) in failing to object to hearsay statements and for eliciting evidence against defendant. Defendant also contends that the trial court erred in imposing two prior prison term enhancements and that he had the constitutional right to have the jury determine whether he was the person whose name appeared on the documents admitted to establish the prior convictions. Respondent concedes, and we agree, that the court should have imposed only one prior prison term enhancement. Otherwise, we affirm the judgment, and we deny the petition for writ of habeas corpus.

FACTUAL BACKGROUND

Arturo Depaz Elias^[1] testified at trial that he was the registered owner of a 1988 Toyota Camry in October 2003. He loaned his car to a friend. His friend subsequently called him and told him the car was no longer where he had parked it. His friend reported the stolen car to the police and gave the police Depaz's phone number, so they could contact him. Officer Brian Quick testified that, on October 17, 2003, he took a report of Depaz's stolen car. The police called Depaz three days later to tell him they found his car. Depaz did not know defendant and had never given him permission to borrow his car.

Officer Michael Ritter testified at trial that on October 18, 2003, he was on patrol and saw a white Toyota Camry that was turning hit the curb. Officer Ritter stopped the car to see if the driver was under the influence. The car did not have a regular license plate but had a plate with a car dealer's name on it. Defendant was the driver of the car. Defendant told the officer that his license had been suspended. Officer Ritter had defendant step out of the car. Meanwhile, Officer Ritter's partner, Officer Perez, called the vehicle identification number (VIN) of the car in to the dispatch center. Dispatch reported that the car was stolen. Officer Ritter also looked at the VIN in order to confirm with dispatch that the car was stolen. Officer Ritter testified that the printout from the computer in the patrol car concerning the stolen vehicle listed Depaz as the registered owner.

Officer Ritter searched the car and observed that the keys in the ignition were not Toyota keys. The keys said â€