P. v. Wyatt

Filed 06/30/06 P. v. Wyatt CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FOUR

Defendant Rudy William Wyatt appeals from a judgment entered upon a jury's verdict finding him guilty of driving a vehicle and of receiving a stolen motorcycle and other stolen property. His counsel has filed an opening brief raising no issues and asking this court for an independent review of the record. (People v. Wende (1979) 25 Cal.3d 436.)

Defendant was charged in count 1 with taking a motor vehicle (a Nissan pickup truck belonging to Page Hersey) without the owner's consent (Veh. Code, § 10851, subd. (a)); in count 2 with taking a motor vehicle (a 1997 Kawasaki motorcycle belonging to Tyler Evans) without the owner's consent (ibid.); in count 3 with receiving the stolen motorcycle (Pen. Code, § 496d, subd. (a)); and in count 4 with receiving stolen property, specifically clothing and tools belonging to Hersey and Eric Blum (Pen. Code, § 496, subd. (a)). The amended information included allegations that defendant had been convicted of prior offenses within the meaning of Penal Code sections 666.5, subdivision (a), 667.5, subdivision (b), and 1203, subdivision (e)(4).

The trial court heard the prosecutor's in limine motion to admit evidence of defendant's prior similar offenses. In separate incidents in February 1994 and April 1995, defendant was found driving a stolen motorcycle. In March 2001, defendant was found driving a stolen car; he pled guilty to a felony violation of Vehicle Code section 10851. The prosecutor contended the prior offenses were admissible to show defendant's intent and knowledge. The trial court ruled the 1994 and 2001 incidents were admissible under Evidence Code section 1101, subdivision (b).

Before opening statements, the prosecutor asked the trial court to preclude defendant's counsel from referring in his opening statement to the criminal record of Carl Watson, who had been a passenger in the stolen pickup truck, contending Watson's record was not relevant. The prosecutor also objected to introduction of inconsistent statements Watson had told the police after the two were stopped. The trial court concluded that the fact Watson lied to the police was not relevant because it would not tend to exonerate defendant, and ruled without prejudice that evidence of Watson's prior convictions would be inadmissible. At trial, the court allowed defendant to introduce evidence of Watson's prior convictions, and instructed the jury that it could consider the convictions only in determining Watson's believability.

The evidence at trial showed that a Nissan truck belonging to Hersey was taken without her consent in March 2005, while it was parked outside Blum's home. There were various items in the truck, including a bag of clothing, some shoes, games, and books. A motorcycle and some tools belonging to Blum were also taken.

A 1997 Kawasaki motorcycle belonging to Evans was also stolen in March 2005. A friend of Evans's, David Steege, saw the motorcycle two days later in the back of a Nissan truck, and followed the truck. When the truck stopped, defendant got out of the driver's seat, and another man got out of the passenger side. Steege then called the police and Evans. Evans arrived and found the motorcycle was his. The truck belonged to Hersey. A police officer who searched defendant found a set of keys. Two of the keys appeared to be worn down, and one appeared to have been bent. The keys included keys to several makes of car, including General Motors, Honda, Kawasaki, and BMW. Another set of keys was found in the truck's ignition. Blum's tools and motorcycle helmet and Hersey's clothing were in the truck.

The prosecution introduced evidence that defendant had been found riding a stolen motorcycle in 1994, and that upon being asked if he knew the motorcycle was stolen, he replied, â€