P. v. Rico

Filed 10/26/06 P. v. Rico 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 San Diego County, H. Ronald Domnitz, Judge. Affirmed.

A jury convicted Marzo Rico of reckless driving to evade an officer (Veh. Code, § 2800.2, subd. (a)) and burglary (Pen. Code, § 459). The court suspended imposition of sentence and placed him on probation for three years, including a condition he serve 365 days in custody.

FACTS

On January 9, 2005, Martha Guerrero left her van on the side of Interstate 805 after it became overheated. She rolled up the windows and locked the van. No one had permission to enter the van or remove property. Around 10:30 p.m., California Highway Patrol Officers Shad Davidson and Leo Nava left a notice on the van that it could remain parked on the side of a freeway for a maximum four hours. Around 1:20 a.m. on January 10, Davidson and Nava again saw the van but this time they saw a pickup truck parked in front of it. They returned and saw broken glass and the silhouette of a person cross in front of the van and enter the driver's seat of the pickup truck. The truck pulled away with its lights off.

Officer Nava activated the patrol car's "code three" lights. The pickup accelerated. Nava activated the siren. Without signaling, the pickup pulled off Interstate 805 northbound at the 47th Street off-ramp and did not stop at a stop sign at the end of the off-ramp. It returned to Interstate 805 southbound. On the ramp, the pickup fishtailed and almost hit the railing. During the chase, the pickup was traveling at 80 to 90 miles an hour. It continued to the Interstate 54 and went westbound.

Eventually, the pickup truck fishtailed, crossing all lanes of the freeway, and spun out. It then proceeded in the wrong direction of traffic heading toward the patrol car. The officers were able to see the driver of the pickup from approximately 12 feet away, for two or three seconds. The pickup truck had a female passenger. The pickup truck became stuck and the occupants exited the truck and ran. Later that morning, Officer Davidson and Officer Nava identified Rico as the driver of the pickup truck. The officers testified that since the incident, Rico shaved off his goatee and mustache. Inside the pickup, the officers found a stereo that was taken from Guerrero's van.

Rico's cousin testified that Rico had no facial hair a week or two before January 19, 2005. Irene Herrera, an acquaintance of Rico's mother, testified that sometime after April, Rico came to her home early in the morning and told her he was subjected to a carjacking and needed a ride home. Rico's girlfriend testified Rico did not have facial hair during 2005. She testified that on January 9 Rico used her pickup. He told her it was carjacked.

On the night the pickup truck was pursued, Rico called 911 and did not change clothes or shave. Rico testified that while he had the pickup on January 9 a man with a gun forced him out of the pickup and drove off. He denied burglarizing the van.

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 trial court erred in failing to give an instruction on the lesser included offense of misdemeanor driving to evade an officer; (2) whether the trial court prejudicially erred in giving CALIC No. 3.62; (3) whether the trial court placed undue limits on the testimony of Rico's expert; (4) whether the prosecution committed misconduct in vouching for the credibility of the investigating officer; and (5) whether the prosecution committed misconduct in asking whether a "rash" of burglaries came to an end after Rico's arrest.

We granted Rico permission to file a brief on his own behalf. He has not responded. 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 Rico on this appeal.

DISPOSITION

The judgment is affirmed.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

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