Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC771605
ELIA, J.Following a bifurcated trial, a jury found Troy Kealii Guthier guilty of one count of vehicle theft (Veh. Code, § 10851, subd. (a)). The trial court, defendant having waived a jury, found a prior vehicle theft conviction allegation (Pen. Code, § 666.5) and two prior prison term allegations (§ 667.5, subd. (b)) to be true. The court sentenced defendant to a six year prison term. Defendant appeals from the judgment.
All further statutory references are to the Penal Code unless otherwise stated.
We appointed counsel to represent defendant on appeal. After examining the record, counsel filed a Wende brief requesting this court to conduct an independent review of the record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 . Counsel did not identify any possible appellate issues. (See Anders v. California (1967) 386 U.S. 738, 744 [87 S.Ct. 1396].) We advised defendant that he could submit any argument that he wished to make and no argument has been received from defendant. Following a thorough review of the record, we affirm.
Background
An amended and consolidated information filed on February 27, 2008 charged defendant with two counts of vehicle theft with a prior conviction and contained three prior prison term allegations. Count one charged defendant with driving and taking a 2004 Honda motorcycle belonging to Sean Britt on or about April 23, 2007. Count two charged defendant with driving and taking a Ford Explorer belonging to Sunnyvale Ford Dealership on or about October 12, 2007. The third prior prison term allegation was dismissed before trial because the prison term coincided with the prison term of another prior prison term allegation. The jury found defendant guilty of count one but could not reach a verdict on count two.
The evidence at trial showed Sean Britt posted an ad to sell his motorcycle on the Craig's List website. Britt received a telephone call from an unblocked number on his cell phone from a man who said he was interested in looking at the motorcycle. Britt said he was available anytime and said the man should call back when the man had time to see the motorcycle. The man called Britt back and they agreed to meet at a post office, where the man said he worked, at 6 o'clock. When Britt arrived, the man contacted Britt on his cell phone, the man said he was coming out in a minute, and they made visual contact while the man was still on his cell phone. They met and talked about the motorcycle for 10 to 15 minutes. The man agreed to pay the price in cash. Britt allowed the man to put on his expensive riding jacket and helmet for a test drive of the motorcycle within the parking lot. The man drove the motorcycle onto the street and took off without Britt's permission. A call was made to 911.
On April 23, 2007, San Jose Police Officer Leslie Martin responded to a report of a stolen vehicle. Britt provided her with the suspect's cell phone number and Officer Martin used the reverse directory listing to obtain a name associated with that number and then obtained an associated home telephone number for that person.
San Jose Police Officer Milan Hrncir investigated the vehicle theft. Based upon Officer Martin's report, Officer Hrncir identified defendant as the suspect. Britt identified defendant in a photo lineup provided by police. On June 7, 2007, after Officer Hrncir unsuccessfully attempted to contact defendant at two residences where he left his card, defendant telephoned Officer Hrncir. Officer Hrncir told defendant that he was investigating a stolen motorcycle and the victim had identified defendant as the suspect.
The stolen Ford Explorer was located at the home address of defendant's wife. On October 12, 2007, police set up a surveillance of the vehicle and defendant was arrested after he entered and attempted to drive the vehicle.
During a recorded October 2007 telephone conversation from jail, defendant indicated that he was in jail on "one warrant" and "one new one" and he had not been planning to turn himself in and he had been intending to run as long as he could. During a subsequent, recorded telephone conversation from jail, defendant discussed whether he should grow a goatee to prevent the bike owner from identifying him in court.
Britt positively identified defendant in court as the man who took his motorcycle on April 23, 2007 and never returned it.
Following the court trial, defendant waived time for sentencing.
At sentencing, the trial court found no circumstances in mitigation. It identified four factors in aggravation, specifically that defendant's prior convictions, which included 22 felony convictions, were numerous and of increasing seriousness, defendant's prior performance on probation or parole was unsatisfactory, he was on parole when he committed the current offense, and his manner of committing the crime indicated he had used a "predatory method" that he had used in the past. (Cal. Rules of Court, rule 4.421(a)(8), (b)(2), (4), and (5).) The court imposed a six-year prison term consisting of an upper term of four years on count one (Veh. Code, § 10851, subd. (a); Pen. Code, § 666.5; see People v. Black (2007) 41 Cal.4th 799, 816; People v. Sandoval (2007) 41 Cal.4th 825, 838) and two one-year enhancement terms (§ 667.5, subd. (b)).
The probation report indicated that defendant was serving a 12-month parole term based upon multiple violations. The trial court determined that defendant was not entitled to any presentence custody credit even though, as a "matter of fairness," the prosecutor had agreed to stipulate with defense counsel that defendant receive credit from the date of conviction rather than the date of sentence, specifically 72 additional days credit consisting of 48 actual days and section 4019 credit.
The court ordered defendant to pay $2,450 in restitution to the victim (§ 1202.4, subd. (f)), a restitution fine of $1,200 (§ 1202.4), a 10 percent administrative fee (§ 1202.4), and a parole revocation fine of $1,200, suspended unless parole is revoked (§ 1202.45), a court security fee of $20 (§ 1465.8), and a criminal justice administrative fee of $129.75. (Gov. Code, §§ 29550, 29550.1, 29550.2.) The court announced it was recommending to the California Department of Motor Vehicles that defendant's driving privileges be revoked (Veh. Code, § 13357). It ordered defendant to provide samples and prints pursuant to section 296. Count two was subsequently dismissed.
Our review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436 has disclosed no reasonably arguable appellate issue.
DISPOSITION
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., BAMATTRE-MANOUKIAN, J.