P. v. Saechao

Filed 3/23/07 P. v. Saechao CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Merced County. Eric G. Helgesen, Judge.

Syda Kosofshy, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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INTRODUCTION

On May 2, 2006, a jury trial commenced against appellant, Kao Kuang Saechao, who was charged with feloniously running a chop shop (Veh. Code,  10802, count one). The information alleged a prior prison term enhancement. (Pen. Code,  667.5, subd. (b)). Appellant was further charged with misdemeanor allegations of altering a vehicles identification number (Veh. Code,  10750, subd. (a), count two) and possession of a component part from a vehicle in which the identification number had been removed (Veh. Code,  10751, subd. (a)). The jury acquitted appellant of count one and found him guilty of both misdemeanor allegations.^[1] The court sentenced appellant to concurrent six-month jail terms. With credit for time served, appellant was released.

FACTS

At 9:10 a.m. on June 7, 2005, Merced Police Officer Vance Walker saw appellant driving a 1981 Ford pickup truck. The vehicle identification number (VIN) on the dashboard was F25GRGJ3109. The vehicle was impounded. Appellant showed Walker a handwritten receipt indicating appellant had purchased the truck on May 10, 2005.

On August 17, 2005, Merced Police Detective John Fister examined appellants truck. Appellant had acquired a second pickup truck from his pastor that was a 1980 Ford. Appellant placed the VIN from the 1980 truck onto the 1981 truck. Fister noticed the VIN on the 1981 truck was attached to the dashboard with Phillips head screws. On most American vehicles, the VIN plates are riveted to the vehicle. In addition to the VIN, appellant took the dashboard, seats, and door panels from the 1980 truck and placed them on the 1981 truck. On newer vehicles, the VIN is not attached to the dashboard.

A Department of Motor Vehicles (DMV) printout of the trucks registration history showed a different VIN for the 1981 truck. The DMV printout also showed the truck had a different registered owner. Fister and California Highway Patrol Investigator Paul Curtain spoke to appellant at his residence about the truck. Appellant told them he paid $200 for the 1081 truck from someone named Frankie and had received a second pickup truck, a 1980 Ford, from the pastor of his church. Appellant explained that he planned to use the parts in the 1980 truck and place them into the 1981 truck.

Appellant admitted to the investigators that he switched the VIN plates because Frankie had not given him registration papers for the 1981 truck.^[2] Fister saw the 1981 truck and the bed of the 1980 truck in appellants yard during the investigation. Appellant said he disposed of the 1980 truck in a scrap yard.

DISCUSSION

Appellants appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (Peoplev. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel, indicating that appellant was advised he could file his own brief with this court. On October 12, 2006, we invited appellant to submit a letter stating any grounds on appeal he would want this court to consider. To date, he has not replied.

After careful review of the record, we find no error by the trial court in its evidentiary rulings. The parties were permitted to examine and cross-examine each witness. There was no overreaching by the prosecutor in the presentation of evidence or in closing argument to the jury. The jury was carefully instructed on the elements of the charged offenses. The jury acquitted appellant of count one, the felony allegation. There was substantial evidence to support appellants misdemeanor convictions for counts two and three. Appellant received concurrent jail sentences for counts two and three and released for time served. We find no error at trial or in appellants sentencing.

After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.

DISPOSITION

The judgment is affirmed.

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^*Before Wiseman, Acting P.J., Gomes, J., and Kane, J.

^[1] Although appellant was convicted only of misdemeanor offenses, an information was filed in superior court. Because the case was tried in superior court with a felony allegation upon the filing of an information, jurisdiction on appeal rests with this court rather than the appellate division of the superior court. (See People v. Nickerson (2005) 128 Cal.App.4th 33, 36-39 [distinguishing felony allegation in criminal complaint as contrasted with felony allegation in information or indictment.)

^[2] At the beginning of trial, and outside the presence of the jury, the trial court conducted an Evidence Code section 402 hearing concerning the admissibility of appellants admissions. Officer Fister testified that he read appellant his rights pursuant to Mirandav. Arizona (1966) 384 U.S. 436 (Miranda) verbatim from a card. Fister read from the card into the record. Fister testified that appellant appeared to fully understand and to be fluent in English. Appellant also appeared to hear Fister and to understand the Miranda warnings. This evidence was unrefuted, although we note that appellant did have a translator at trial. The court denied appellants motion to exclude his admissions. We find there was substantial evidence in support of the trial courts ruling.