P. v. Quintero
Filed 4/11/06 P. v. Quintero CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
| THE PEOPLE, Plaintiff and Respondent, v. HERBIERTO QUINTERO, Defendant and Appellant. |
A108921
(Contra Costa County Super. Ct. No. 05-041316-1)
|
Herbierto Quintero appeals his conviction by jury verdict of vehicle theft (Veh. Code, § 10851, subd. (a)) and misdemeanor possession of burglar's tools (Pen. Code, § 466, subd. (a)). In a bifurcated proceeding the court found true the allegation that appellant had a prior felony vehicle theft conviction. (Pen. Code, § 666.5.) He challenges the vehicle theft conviction on grounds of instructional error and prosecutorial misconduct.
BACKGROUND
Prosecution
William Hickson and Katharine Smith live together and are co-owners of a white 1990 Ford Thunderbird. On Sunday, May 2, 2004, between 9:00 p.m. and 10:00 p.m., Hickson went to lock the car, which was parked in their assigned parking stall. The window (presumably driver's side window) was half open; he knew this because the motor on the door would not operate the window.
On the morning of either Monday, May 3, or Tuesday, May 4, Hickson and Smith noticed the Thunderbird was not where they had last seen it. They were not missing any of the keys to the car. Hickson reported the missing car to the police.[1]
At approximately 12:15 a.m., Wednesday, May 5, Sheriff Deputy Craig Brooks, on patrol in the Bay Point area of Contra Costa County, saw appellant driving a white Ford. A license plate check showed that the Martinez Police Department had reported the car stolen. Without turning on his siren or overhead lights, Sheriff Brooks followed the Ford as it turned into 63 Mountain View Avenue, a long driveway with one-bedroom apartment units on either side that terminates in a big circle. The Ford stopped at the end of the driveway. Brooks stopped approximately two car lengths behind it and was then able to identify the Ford specifically as a Thunderbird. Appellant, wearing baseball gloves, got out and walked quickly toward the rear of the Thunderbird. Brooks detained him. He searched the Thunderbird and found no baseball or other sports paraphernalia. Appellant did not give Brooks the Thunderbird's registration papers, nor did Brooks find them in the car.
Brooks retrieved two key rings from appellant's trouser pocket. The first ring contained three keys, and the second ring contained four keys. Based on his training and experience, he recognized the keys as vehicle keys, five of which appeared to be ignition keys that were filed and shaved to fit into ignition slots for which they were not intended to fit. Such filing causes discoloration on a key. One key appeared to be a car door key, and one key, marked â€
