P. v. Ochotorena

Filed 1/21/09 P. v. Ochotorena CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Mike Camacho, Judge. Affirmed.

Linda L. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

PROCEDURAL HISTORY

Richard Ochotorena (appellant) appeals from a judgment entered following his conviction by jury of unlawfully driving or taking a vehicle. (Veh. Code

10851(a).) The jury returned a true finding on a charged prior conviction for first degree burglary. (Pen. Code 1170.12 (a) through (d) and 667 (b) through (i).) Following denial of his motion to dismiss the prior pursuant to Penal Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, appellant was sentenced to state prison for four years, consisting of the upper two-year term for the new offense doubled pursuant to the prior strike.

Before and during trial, the court on three occasions heard and denied appellants motions to relieve counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118. At the conclusion of the Peoples case, appellants motion for judgment of acquittal (Pen. Code 1118.1.) was heard and denied.

Appellant filed a timely notice of appeal and we appointed counsel. On October 27, 2008, counsel filed an opening brief raising no issues. On November 4, 2008, the clerk of this court notified appellant by letter that he had 30 days to submit any contentions or arguments. Appellant has not responded.

STATEMENT OF FACTS

Augusto Mendoza, his neighbor Aida Spriggs (appellants grandmother) and a deputy sheriff were called to testify by the People. Early on the morning of February 2, 2008, without permission, appellant and a female companion jumped into Mendozas idling truck and appellant drove it away as Mendoza watched from his driveway. Mendoza had seen appellant in the neighborhood prior to the theft, and he encountered him again a week after the crime. On that occasion, appellant was eventually arrested hiding in a truck on a nearby street.

Appellant testified he had been homeless in February of 2008, and had been taking meals and showers at his grandmothers home. He denied being in the area on February 2, though he could not remember his whereabouts. He denied involvement in the charged crime. He claimed to have been sleeping in a friends truck with permission, rather than hiding from the police, at the time of his arrest.

DISCUSSION

We have independently reviewed the record and are satisfied appointed counsel fulfilled her duty and that there are no arguable issues. (People v. Wende (1979) 25 Cal.3d 436; People v. Kelly (2006) 40 Cal.4th 106.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ONEILL, J.*

We concur:

RUBIN, Acting P. J.

BIGELOW, J.

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* Judge of the Ventura Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.