P. v. Mesa

Filed 2/28/08 P. v. Mesa CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, George Genesta, Judge. Affirmed.

James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.

Reno Rockey Mesa appeals from judgment entered following a jury trial in which he was convicted of the unlawful driving or taking of a vehicle (Veh. Code,  10851, subd. (a)). He was sentenced to the middle term of two years and contends the denial of his request for probation was an abuse of discretion where the reason for the denial was his election to have a jury trial. For reasons stated in the opinion, we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On May 10, 2006, at approximately 7:30 a.m., Willard Kearney brought his dark blue 2005 Cadillac STS vehicle to the dealership for repairs. At approximately 9:00 a.m., he received a telephone call from the service manager that his vehicle was missing. The dealership notified the police and that was the last time Mr. Kearney saw his vehicle. Other than personnel from the dealership, Mr. Kearney had given no one permission to take his car. Mr. Kearney did not know appellant.

On December 14, 2006, at approximately 6:00 p.m., Los Angeles County Deputy Sheriff Rudolf Schaap was at the location of Citrus Avenue and Gladstone in Azusa when he saw a vehicle turn left without signaling. He also noticed the vehicles tires were oversized, extending past the wheel wells, which is a violation of the Vehicle Code. When he ran the vehicle through the sheriffs computer system, the vehicle came back as a 2003 Cadillac. He recognized the vehicle as a 2005 or newer Cadillac STS and conducted a traffic stop.

Appellant was driving the vehicle and Deputy Schaap advised him why he had been stopped. When appellant was asked if the vehicle belonged to him, appellant said it did not and that he was on a test drive. Appellant did not know to whom the vehicle belonged and did not have a phone number or any way of contacting the person who allowed him to test drive the vehicle. When asked if he knew the vehicle was salvaged, appellant stated he did.

Documentation from the Department of Motor Vehicles indicated the vehicle was a 2003 salvaged Cadillac, registered to Stephanie Lieras.[1] When Deputy Schaap looked at the VIN plate, he noticed there were scratches; the paint on the VIN plate had bubbling that usually occurs when there is adhesive being applied, tending to melt part of the paint.[2] The deputy peeled back the federal identification label located on the doorpost of the vehicle to see if it would obliterate and it did not.[3] He also looked under the hood to see if there was an emission sticker that would indicate the exact year of the vehicle. Often when dealing with a VIN switch, the emission sticker is removed, and in this case, the emission sticker was missing. The load sticker, which provides information on a particular vehicle, was peeled off. The front cover of the owners manual for the vehicle was missing. When the Deputy examined the manual, it referenced a 2005 Cadillac STS. Based on everything he saw, he believed the vehicle was a stolen 2005 Cadillac STS with a switched VIN plate and arrested appellant for receiving stolen property.

Upon further examination, the deputy located a secondary VIN number belonging to a stolen 2005 Cadillac STS. Based on this second VIN, he determined the owner of the vehicle to be Willard Kearney.

Following waiver of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), appellant stated he obtained the car from Stephanie and that she was selling it for $40,000. He had not left a deposit or anything with her for collateral. He later stated that Stephanie Lieras was an older female Hispanic lady.

Stephanie Lieras testified at trial. She was 23 years old. She had never owned a 2003 Cadillac. She previously owned a 1995 Geo Prism automobile, which she sold in September 2006. She did not know appellant.

At sentencing, the court indicated it had read and reviewed the probation officers report[4]and a letter from the mother of appellants child. Appellants counsel argued that appellants criminal history was minimal and that he had no prior convictions or arrests for any crime that would be a danger to society or another human being. Additionally the present offense did not involve a threat or danger to another person. Counsel asked the court to focus on the fact that appellant was offered 180 days in county jail at arraignment but that he wished to plead not guilty, maintain his innocence and exercise his right to a jury trial.

The prosecution argued that probation should be denied and that appellant should be sentenced to the middle term. According to the probation report, appellant was on probation when he committed the instant crime and had violated probation in two cases.

The court responded that it did not understand why he didnt take the probation and county jail offer with the facts that the court heard during the course of this trial. Apparently, he wanted [the court] to hear the facts of the trial and run the risk of going to trial. [The court] heard the facts. [The court] heard an elderly gentleman take his car to a dealership, leave it there to have it worked on and be told someone stole it. [] And then we hear some months later that the defendants driving down the street with plates from another vehicle with the vehicle identification numbers erased from that vehicle and new one placed on the obvious part where vehicle identification number is placed, and he has a registration that says salvaged. [] What greater notice does that give a person in terms of the character of that vehicle than the defendants own statements as presented by the vehicle when questioned about his knowledge of the vehicle and its ownership? Apparently, he wanted the court to hear all this because he didnt want to have the probationary sentence offer. Apparently, he wanted the court to hear what his excuses were for possession of vehicle. He didnt want early disposition. He wanted the trial, and he had it. [] [The court] heard a lot of facts and information about this gentlemans knowledge of driving around in a stolen vehicle. It was clear and apparent he had no story plausible within the realm of reality that he was simply driving the car for test purposes for purchase. It was absurd on its face. His explanations were absurd and simply he was carrying on the charade of innocent possession of that vehicle, and the court heard all the excuses. [] Apparently -- another woman had to be brought in and testify although she was listed as the registered owner she had no knowledge of it, did not do so with her permission, had to be inconvenienced and deal with the issue of her identity being stolen for purposes of perpetrating someone elses crime and he received the benefit of it. [] Now he comes into this court and asks the court to consider a probationary sentence. He was offered a reward for disposing this case early, knowing what the facts are, knowing what would come out in trial and yet he decided to go to trial. [The court has] no sympathy for his situation. [The court] understand the situation with his girlfriend and having a child, but that would say that he should be responsible, he should be law abiding and he should follow the rules that everyone else follows, which he didnt. He decided that his transportation would be someone elses Cadillac and enjoy the benefits of that. He was untruthful in the beginning in his claims. [] And requests for the court to be sympathetic to his situation and his lack of record, well, he had that opportunity and thats why he was offered a probationary sentence at the beginning. For reasons of his own -- [the court doesnt] know what they are. [The court doesnt] inquire of that -- he decided he wanted to go to trial and he wanted this judge to hear all the facts of the stop, his explanations and the victims coming in here and testifying. Well, [the court] heard it. [] The court has read and reviewed the probation officers report. The defendant has a normal record. He also has -- in this matter the crime was carried out, indicates planning and sophistication. The crime involved actual taking of some[one] elses vehicle. It was clear to this court that he had knowledge of its stolen character, clear that he knew the value of this vehicle and yet he continued to drive it and enjoy the benefit of that vehicle.

DISCUSSION

Appellant contends the denial of probation was an abuse of discretion in that it was based on appellants election to have a jury trial. We disagree.

In In re Lewallen(1979) 23 Cal.3d 274, our Supreme Court stated, a trial judge is . . . precluded from imposing a more severe sentence because the accused elects to proceed to trial. Trial courts may not thus chill the exercise of the constitutional right to trial by jury. [] We emphasize, however, that a trial courts discretion in imposing sentence is in no way limited by the terms of any negotiated pleas or sentences offered the defendant by the prosecution. The imposition of sentence within the legislatively prescribed limits is exclusively a judicial function. [Citation.] . . . Legitimate facts may come to the courts attention either through the personal observations of the judge during trial . . . or through the presentence report by the probation department, to induce the court to impose a sentence in excess of any recommended by the prosecution. [] Thus it is clear that under appropriate circumstances a defendant may receive a more severe sentence following trial than he would have received had he pleaded guilty; the trial itself may reveal more adverse information about him than was previously known. A court may not, however, impose a sentence that conflicts with a defendants exercise of his constitutional right to a jury trial. (Id. at p. 281, fn. omitted.)

Contrary to appellants contention, the record reveals that the trial courts comments regarding appellants decision not to accept the offer of probation and 180 days in jail was in response to defense counsels suggestion that a probation sentence was appropriate because it had previously been offered. The trial court properly considered the facts that came to the courts attention during the trial to impose sentence and there was no abuse of discretion. (See People v. Downey (2000) 82 Cal.App.4th 899, 909-910.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P.J.

We concur:

WILLHITE, J. MANELLA, J.

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[1] The registration was issued on May 15, 2006, five days after Mr. Kearneys vehicle had been stolen.

[2] Deputy Schaap testified that a VIN switch is where one takes the identifying numbers off a vehicle that has been damaged or destroyed and places them on a stolen vehicle to conceal that vehicles identity.

[3] The label is made to destruct if it is peeled off so that the particular label cannot be used on another vehicle.

[4] The probation report reflects that in 2002, appellant was convicted of violating Vehicle Code section 10852, breaking or removing vehicle parts, a misdemeanor, and placed on probation. In 2004, he was convicted of violating Vehicle Code section 14601.1, driving with a suspended license, a misdemeanor, and received probation. Also in 2004, he was convicted of violating Vehicle Code section 12500, subdivision (a), driving without a license, for which he received probation.