P. v. Villalpando

Filed 4/19/06 P. v. Villalpando CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Imperial County, Juan Ulloa, Judge. Affirmed.

A jury convicted Noel Felipe Villalpando of falsely informing another person that a bomb or other explosive had been placed in a public place. (Pen. Code, § 148.1, subd. (c).) The court sentenced him to prison for the three-year upper term, suspended imposition of sentence and placed him on three years' probation.

FACTS

On January 28, 2005, Villalpando went to the clerk's office at the Imperial County courthouse. He asked the clerk for a file, placed a round object wrapped in duct tape on the counter and asked the clerk how to spell the word bomb: "b-o-m-b or b-u-m-b?" The object Villalpando placed on the counter was later determined to be a homemade fertilizer stake. The object was received in evidence. Another person in line saw the object and asked Villalpando, "Is that a bomb?" Villalpando replied, "It could be." An expert testified that the fertilizer stake could be converted to an explosive.

DISCUSSION

Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to 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 the information provided Villalpando with adequate notice of the charge; (2) whether the trial court erred in admitting over a relevancy objection evidence that the object Villalpando took to the courthouse looked like a bomb and could have been converted to a bomb; (3) whether Penal Code section 148.1, subdivision (c) interferes with free speech; (4) whether the trial court erred in instructing the jury on consciousness of guilt: (5) whether the trial court erred in instructing the jury on Villalpando's state of mind; (6) whether the trial court erred in instructing the jury on motive; (7) whether the trial court erred in instructing the jury on eyewitness testimony; (8) whether the trial court erred in denying a Marsden motion (People v. Marsden (1970) 2 Cal.3d 118); (9) whether the trial court erred in not instructing the jury on a lesser included offense; and (10) whether the trial court erred in imposing the upper term.

We granted Villalpando permission to file a brief on his own behalf. He has not responded. We requested additional briefing on the question of whether the identification of a speaker as "Albertson" (a deputy district attorney) at the Marsden hearing was a typographical error or if the deputy district attorney was present in the courtroom during the Marsden hearing. Villalpando's appellate counsel has advised us that it was a typographical error and the statement identified as being from "Albertson" was made by Villalpando's trial counsel. A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Villalpando on this appeal.

DISPOSITION

The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.

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