Filed 6/20/17 P. v. Delacerda CA4/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

HECTOR DELACERDA,

Defendant and Appellant.


G054021

(Super. Ct. No. 16NF0726)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Robert C. Gannon, Judge. Affirmed.
Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
* * *


Appellant Hector Delacerda rollerbladed into the Ace Motors car dealership around 1:30 one day, clad only in shorts. He said “Miguel” had sent him to pick up a car. Told no one at the dealership was expecting to release a car to a “Miguel,” appellant rollerbladed around the dealership for awhile, then got into an Audi A5 convertible and turned the key.
Hearing the engine turn over in the A5, Carlos Medina Rojas ran to the car and told appellant he could not test drive it. Appellant said he wanted to drive the car to the bank and Medina Rojas refused permission to take the car off the lot. Appellant removed one of his rollerblades to release the brake, put the car into reverse, and accelerated 8-10 feet before colliding with another car.
Appellant then put the car into park, got out, and walked out of the dealership. Medina Rojas ran back in, told his coworkers to call the police, and ran out to detain appellant. Appellant looked at him, put on his other rollerblade, and skated away from the dealership. Medina Rojas followed in his car and updated police on appellant’s location until they were able to apprehend him.
Appellant testified that he had gone to the dealership to buy a luxury car. He admitted getting into the A5 and starting it. He said he tried to give Medina Rojas his credit card and identification card for the purchase, but Medina Rojas wouldn’t take it, and wouldn’t agree to let him go to the bank for cash. He said the car moved accidentally, and that he fled only because people were shouting at him. He said he’d had some mental health issues in the past.
Appellant was charged with a violation of Vehicle Code section 10851 (unlawful taking of a vehicle) and a violation of Vehicle Code section 20002, subdivision (a) (hit and run with property damage). Two prior felony convictions – one drug-related, one for auto theft – and a serious and violent felony prior, for attempted robbery connected with the auto theft, were also alleged. A jury convicted appellant of attempted unlawful taking of a vehicle, in accordance with the court’s instructions on attempt, doubtless in consideration of the fact he had only gone 10 feet when he collided with the other car.
The court put appellant on probation, a condition of which was that he serve a year incarcerated in county jail. He appealed his conviction and we appointed counsel to represent him. Counsel did not argue against his client, but advised this court he could find no issues to argue on appellant’s behalf. (People v. Wende (1979) 25 Cal.3d 436.) He filed a brief which set forth the facts of the case and advised us he was unable to find an appellate issue he could ethically argue.
Appellant was given 30 days to file written argument in his own behalf if he chose to. That time has expired and no argument has been received. We have therefore reviewed the record ourselves to see if we could find any issues – not necessarily issues that would win, but issues that might be worth considering. We could not. As the facts recited above demonstrate, there was very little that could be done in appellant’s behalf, either in the trial court or here.
There were no serious evidentiary issues, no search problems, no complicated instructions. While no trial is garden-variety, and every one is important, there was nothing about this one that presented a significant legal challenge. The case was based on intent, and did not raise any difficult problems of a legal nature. The case turned on facts and their interpretation, not legal niceties.
Appellate counsel investigated the possibility of an appeal based on the conviction of attempted vehicle taking, after the information had alleged completed vehicle taking, but wisely concluded California law required the court to raise this issue sua sponte (People v. Breverman (1998) 19 Cal.4th 142) and the instructions given the jury on the point were straight out of the book and completely unobjectionable.
Nor can we find anything remarkable about the sentencing. The court struck priors to enable it to afford appellant a probationary sentence. No one – other than perhaps the prosecutor – could seriously argue that there was anything like an abuse of discretion in the court’s decision of a year in county jail and five years of probation given appellant’s record.
In short, we find ourselves in agreement with appellant’s appellate counsel. We have carefully reviewed the record and cannot conceive of any issue that could be raised on this appeal.
The judgment is affirmed.






BEDSWORTH, ACTING P. J.

WE CONCUR:




IKOLA, J.




THOMPSON, J.