P. v. Perez
Filed 3/30/06 P. v. Perez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
| THE PEOPLE, Plaintiff and Respondent, v. ERIC EDUARDO PEREZ, Defendant and Appellant. | B184537 (Los Angeles County Super. Ct. No. VA087923) |
APPEAL from a judgment of the Superior Court of Los Angeles County. Philip H. Hickok, Judge. Affirmed and remanded.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Alan D. Tate, Deputy Attorneys General, for Plaintiff and Respondent.
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Eric Eduardo Perez appeals from the judgment entered upon his conviction by jury of the attempted unlawful driving or taking of a vehicle (Pen. Code, § 664/Veh. Code, § 10851, subd. (a))[1] and giving false information to a peace officer, a misdemeanor (§ 148.9, subd. (a)), and his admissions that he had sustained a prior felony conviction within the meaning of the three strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), a prior conviction within the meaning of section 666.5, and three prior felony convictions for which he served two separate prison terms within the meaning of section 667.5, subdivision (b). He was sentenced to four years in prison, comprised of three years for attempted unlawful driving or taking of a vehicle under section 666.5 and the three strikes law, plus a one-year section 667.5, subdivision (b) enhancement.
Appellant contends that (1) the trial court erred by increasing his sentence for attempted unlawful driving or taking of a vehicle pursuant to section 666.5; (2) the prosecution failed to lay a foundation for evidence of a telephone call because his voice was not authenticated; (3) the trial court erred by admitting evidence of the telephone call because it was more prejudicial than probative; and (4) defense counsel's failure to request a preliminary fact instruction pursuant to Evidence Code section 403, subdivision (c)(1) constitutes ineffective representation of counsel.
As respondent agrees, section 666.5 does not apply in appellant's case, and we remand the matter for resentencing. In all other respects, we affirm.
FACTS
The evidence established that at approximately 3:45 or 4:00 p.m. on March 13, 2005, Ana Dominguez looked out the window of her Richlee Avenue, South Gate, residence and saw two men inside her husband's 1986 Honda Accord. She walked over to the vehicle and observed appellant sitting in the driver's seat and Oscar Arevalo sitting in the front passenger seat. Appellant was holding a key in the ignition and was trying to start the car, while Arevalo leaned towards appellant as if to help him.
Dominguez asked the men several times what they were doing in her car. At first they ignored her. Finally, appellant got out of the Accord. Standing four feet from Dominguez, he showed her a key and stated that the car was his and that she must have changed the ignition key. Dominguez told appellant that she had owned the car for 10 years, but appellant insisted that the car was his. Arevalo got out of the vehicle and urged appellant to ignore Dominguez and just take the car. After appellant persisted in stating that the car belonged to him, he suddenly became apologetic and stated, â€
