Opinion
F062472 Super. Ct. No. 10CM8849
02-09-2012
THE PEOPLE, Plaintiff and Respondent, v. ARMANDO MORALES, Defendant and Appellant.
Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
THE COURT
Before Wiseman, Acting P.J., Dawson, J., and Poochigian, J.
APPEAL from a judgment of the Superior Court of Kings County. Steven D. Barnes, Judge.
Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
STATEMENT OF THE CASE
Appellant, Armando Morales, was charged in an information filed on December 17, 2010, with unlawfully taking a vehicle without the owner's consent (Veh. Code, § 10851, subd. (a)). The information also alleged a prior serious or violent felony conviction within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i) & 1070.12, subds. (a)-(d)) and a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)).
On February 24, 2011, appellant brought a Marsden motion in which he expressed discontent over a possible plea bargain negotiated by his counsel. The court explained that if appellant wanted a trial, he was entitled to have one. At the end of the hearing, appellant stated he still wanted counsel to help him. The court denied appellant's Marsden motion.
People v. Marsden (1970) 2 Cal.3d 118.
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At the conclusion of a jury trial on March 29, 2011, appellant was found guilty. In a bifurcated proceeding, appellant waived his right to a jury trial and the trial court found true the allegations that appellant had a prior serious felony conviction and had served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
On April 25, 2011, the trial court sentenced appellant to the midterm of two years, doubled to four years pursuant to the three strikes law. The court imposed a consecutive term of one year for the prior prison term enhancement for a total prison term of five years. Appellant was awarded 161 days of actual custody credits and 80 days of conduct credits for total custody credits of 241 days. Appellant's brief was filed pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
FACTS
On March 28, 2010, Juan Cortez was visiting his cousins Yudid and Yuliana Hernandez in Kettleman City in Kings County because his uncle Hector Hernandez was going to be away. Cortez was talking with Yudid and Yuliana at 2:45 a.m. when Yudid said she thought someone was stealing Cortez's car. Cortez was outside in about 30 seconds. His car engine was not on and it did not look like anyone was stealing his car. Cortez did see exhaust coming out from his uncle's van and the motor was running. Cortez did not believe that anyone had permission to take his uncle's van.
Cortez went up to the van and opened the passenger side door and the interior light came on. Cortez saw a stranger behind the wheel. Cortez identified appellant as the person he saw in his uncle's van that night. Appellant reached for something toward the passenger seat inside the van. Cortez tried to stop appellant by attempting to turn off the ignition, but was unsuccessful. Appellant drove away.
Yuliana testified that at 2:45 a.m. on March 28, 2010, she was at home in her living room talking to Cortez and her sister when she heard the sound of a vehicle starting. Yudid told Cortez she thought someone was stealing his car. Cortez looked out the front door and said it was not his car. Cortez walked toward the family van to see who was in the van. Yuliana and Yudid stood in the door of their home before walking toward the van.
Yuliana saw Cortez open a rear passenger door of her father's van. When Cortez opened the door, the interior light turned on and Yuliana could see the driver. Yuliana saw Armando Morales in the driver's seat of the van. Yuliana's father had left town. Appellant did not have permission to take the van. Yuliana had known appellant since she was a little girl because he was related to a relative's husband. Before appellant took the van it was in good condition with no major body damage. After the van was found a few days later, there was body damage all over the van. The van had been flipped.
Hector Hernandez kept a key to the van in a compartment in the van. When the van was found, the key was still in the ignition. Hernandez knew appellant, but never gave him permission to drive his van. Hernandez had another friend who knew about the key, but that friend would call to ask permission before borrowing the van. No physical evidence of appellant, including his fingerprints, was found in the van by investigators.
APPELLATE COURT REVIEW
Appellant's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (Wende, supra, 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. By letter on August 29, 2011, we invited appellant to submit additional briefing. To date, he has not done so.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.