P. v. Sicairos

Filed 3/20/07 P. v. Sicairos CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Harvey Giss, Judge. Affirmed.

Debra Fischl, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Daniel Sicairos appeals from a judgment entered following a jury trial in which he was convicted of the unlawful driving or taking of a vehicle, count 1 (Veh. Code,  10851, subd. (a)) and receiving stolen property, the vehicle, count 2 (Pen. Code,  496d, subd. (a)). Additionally, he was found in violation of probation. He admitted he previously was convicted of a violation of Vehicle Code section 10851 within the meaning of Penal Code section 666.5 and served prison terms for three prior convictions within the meaning of Penal Code section 667.5. He was sentenced to prison for five years and eight months, consisting of the middle term of two years plus an additional year pursuant to Penal Code section 666.5 for count 1, two consecutive one-year terms for two of the prior prison term enhancements and eight months for the probation violation. Sentence on count 2 was stayed pursuant to Penal Code section 654.

The evidence at trial established that on November 28, 2005, at approximately 5:50 p.m., Los Angeles police officers observed appellant driving a Ford truck that had been reported stolen on September 25, 2005. They saw him park the truck in the driveway of his residence and then enter his home. Officers later approached the home and spoke to appellants parents. During this conversation, appellant left the house through a window and then jumped over a fence. During a search of appellants bedroom, the officers found two ignition solenoids for vehicle ignitions. One of the solenoids was punched, meaning the vehicle key tumbler is no longer inside . . . .

On January 12, 2006, the day after appellants arrest, he stated, he did not steal cars, that he just borrows cars[.] Appellant laughed when he told this to the police officer. Appellant stated he usually punches the ignitions to the vehicles or uses shaved keys, also known as altered keys; and sometimes he plays with the ignition tumblers, and in doing so places a key pin so the key will fit into the vehicle and it will start the vehicle, the ignition. He pretty much said that he can be considered a locksmith. Regarding the stolen Ford truck, appellant stated he didnt know anything about the truck and that [they] didnt see him in the vehicle and . . . it was on the other side of the gate on the sidewalk. So it wasnt his.

On February 23, 2006, appellants Marsden[1] motion was heard and denied.

On April 6, 2006, the trial court conducted an in camera hearing pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535 and concluded two complaints were discoverable.

On April 26, 2006, appellants Marsden motion was heard and denied.

On May 8, 2006, the trial court received a letter from appellant, which the court considered a Marsden motion. The letter was marked as an exhibit and ordered sealed. In response to the courts questioning, appellant stated he was not asking for a different lawyer and was satisfied with his attorney.

After review of the record, appellants court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.

On November 27, 2006, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. On December 20, 2006, he was granted an extension of time to file a supplemental brief to and including January 13, 2007.

On January 6, 2007, he filed a supplemental letter brief essentially disputing the sufficiency of evidence to support his conviction and referencing matters not part of the appellate record.

We have examined the entire record and are satisfied that no arguable issues exist. Issues for review must be based on matters in the appellate record. (See People v. Pearson (1969) 70 Cal.2d 218, 222.) Further, [i]n reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.] (People v. Mincey (1992) 2 Cal.4th 408, 432, fn. omitted.) We do not reweigh the evidence or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Appellant has, by virtue of counsels compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P.J.

SUZUKAWA, J.

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[1]People v. Marsden (1970) 2 Cal.3d 118.