P. v. Merkel

Filed 2/15/08 P. v. Merkel CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Robert P. Dahlquist, Judge. Affirmed.

A jury convicted Andrew Ryan Merkel of receiving stolen property (Pen. Code,^[1] 496, subd. (a)) and giving a false identification to a peace officer ( 148.9, subd. (a)). In a bifurcated proceeding, Merkel admitted that he had previously served a term in prison ( 667.5, subd. (b)). The trial court sentenced Merkel to a three-year prison term.

FACTS

Shortly before 1:00 a.m. on January 14, 2007, a deputy sheriff stopped a black Honda because of excessive speed and lack of registration stickers on the license plates; Merkel was one of two passengers in the vehicle. The deputy sheriff also observed suspicious behavior by the driver and passengers, such as ducking down as if to hide from him. When the deputy sheriff asked Merkel for identification, Merkel replied he did not have any and identified himself as James Cook with a birth date of May 12, 1978. After making a computer check, the deputy sheriff told Merkel that there was no record of a James Cook. Eventually, Merkel correctly identified himself. Merkel said the only thing in the automobile that belonged to him was a black Oakley duffel bag.

Merkel was arrested for giving false identification. Later, sheriff deputies discovered a black iPod in Merkel's pockets.

The black duffel bag contained eight pairs of Oakley sunglasses. Additional pairs of Oakley sunglasses were also found in the Honda. The sunglasses and the duffel bag were among the items stolen the previous day from a truck owned by an Oakley sales representative. The black iPod recovered from Merkel was also stolen from the Oakley sales representative's truck.

Merkel told the sheriff deputy that he had purchased the iPod and the duffel bag with the sunglasses for $200. When asked if "it seemed like too good of a deal to be on the up and up," Merkel replied, "pretty much."

A receipt indicating the Merkel paid $200 for 15 pairs of sunglasses and an iPod was found in Merkel's wallet, which was in his residence.

DISCUSSION

Appointed appellate counsel has filed a brief setting forth evidence in the superior court. Counsel presents no argument for reversal, but asks that this court review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible, but not arguable, issues: (1) whether sufficient evidence supports the convictions for the two crimes; (2) whether prosecutor committed prejudicial misconduct during her closing argument by arguing facts not in evidence and/or by misstating the law; and (3) whether the trial court committed prejudicial error by instructing the jury pursuant to CALCRIM No. 376.

We granted Merkel permission to file a brief on his own behalf. He has not responded.

A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by appellant's counsel, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Merkel on this appeal.

DISPOSITION

The judgment is affirmed.

NARES, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

^[1] Statutory references are to the Penal Code.