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People v. Austin

California Court of Appeals, First District, First Division
Feb 9, 2011
No. A128480 (Cal. Ct. App. Feb. 9, 2011)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. ERIN DAVID AUSTIN, Defendant and Appellant. A128480 California Court of Appeal, First District, First Division February 9, 2011

NOT TO BE PUBLISHED

Solano County Super. Ct. No. VCR-203700

Dondero, J.

Following a jury trial defendant was found guilty of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)), and receiving stolen property (Pen. Code, § 496d, subd. (a)). The trial court denied probation and imposed the middle term of two years for unlawfully driving or taking a vehicle, and a stayed term of two years for receiving stolen property.

Defendant was found not guilty of first degree residential burglary (Pen. Code, § 459), and another charge of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)). We will not recite the facts pertinent to the charges of which defendant was acquitted, except to the extent necessary to discussion of the facts pertinent to the offenses of which he was convicted.

Defendant’s appellate counsel has not raised any issues and instead has asked this court to undertake an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436.) Counsel declares in his affidavit that he notified defendant he could file a supplemental brief raising any issues he wishes to present to this court. No supplemental brief has been received. Upon independent review of the record, we conclude that no arguable issues are presented for review, and affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

In the course of investigating the burglary of a residence and theft of a Volkswagen Passat in the possession of Julio Lazalde at 1127 Beach Street in Vallejo on May 25, 2009, Deputy Charles Olmstead of the Solano County Sheriff’s Department discovered that a blue minivan he suspected had been used in the crimes was in a tow yard. He had the vehicle impounded in a secure police evidence yard in Fairfield. From a police dispatch report Deputy Olmstead also learned the identity of two people another officer had observed inside the same blue van in front of 1123 Beach Street a few days before the burglary. According to Olmstead the couple were defendant and Megan Combado. Later found inside the minivan was some of Lazalde’s personal property.

On the morning of June 16, 2009, George Reading’s maroon 1987 Nissan Maxima, along with his personal belongings inside it, was stolen while the car was parked on the street near a 7-11 store on Tennessee Street in Vallejo. Reading reported the theft and provided the license number of the vehicle.

On the evening of June 23, 2009, Deputy Dan Schick located Reading’s Nissan Maxima, which from the license plate number he “knew was stolen, ” on Wildberry Court in Vallejo. Defendant was driving the vehicle and Megan Combado occupied the front passenger seat. Deputy Schick detained the vehicle and its occupants. Defendant told the deputy that “he had been renting that car from somebody named ‘Zalde’ or ‘Sodi, ’ ” for $50 every two days. Defendant and Combado were subsequently arrested.

The next day, defendant and Combado were interviewed by Deputy Chad Sayre, an investigator with the Solano County Sheriff’s Department. Combado told Deputy Sayre that her cousin Jeremy informed her of the absence of occupants of the burglarized house at 1127 Beach Street, so she could “break in” and trade some items taken from inside for “some crystal meth.” Combado stated that defendant went inside the house “through the back door and unlocked the front door, and she went in through the front door.” Once inside, they stole identification cards, a checkbook, a Dell desktop computer and keyboard, gaming systems, jewelry, and other items, as well as the Passat parked outside. They pawned an Xbox and a ring, kept some of the other items, and threw the rest away. She repeated the earlier statement that they did not steal the Nissan, but rather rented it from someone named “Zalde, ” although she was aware the car “might have been stolen.”

Defendant also admitted to Deputy Sayre that he went into Lazalde’s house and stole the items listed on the property sheet. His version of the incident was consistent with that given by Combado.

Deputy Sayre also searched the interior and trunk of the stolen Nissan Maxima. Documents in Reading’s name were found in a folder inside the vehicle. “DMV paperwork” and other documents in defendant’s name, as well as a photograph of him and his children, were found in the vehicle trunk. Combado’s identification was found in the front seat. The interior of the vehicle was “a mess, ” with backpacks, bags, video games, pillows, and blankets strewn about, and “looked like somebody was living in it.”

Combado, who was a codefendant in the case but entered a plea before trial, testified that she and defendant had been living in a blue van owned by her aunt which they parked in front of her cousin’s house on Beach Street for about a week before the burglary. Combado testified that her cousins, not she and defendant, broke into the residence at 1127 Beach Street and took items out of the house. Combado claimed she falsely admitted the burglary offense to Deputy Sayre to protect her cousins, who are Norteno gang members. Combado again denied that she and defendant stole the Nissan, and reiterated that they rented the car from “this guy Zalde, ” who “hangs out” near the intersection of Broadway and Tennessee in Vallejo.

Defendant testified in his defense that his confession to Deputy Sayre was untrue. He confessed to avoid being “labeled as a snitch.” He was fearful of retaliation, and had been “threatened by several different Norteno gang members” in jail, so he did not want to implicate Marvin Combado, Raul Rivera, and Sodi, who actually committed the burglary. Defendant also testified that he obtained the Nissan “from Sodi, ” a Norteno street gang member who “dwells around” between “Tennessee and Louisiana Street” in Vallejo. His arrangement with Sodi was to “bring him $50 every other day to rent the car.” Sodi told defendant “the car wasn’t stolen.”

DISCUSSION

We find nothing in the record of the pretrial proceedings that presents an arguable issue on appeal. The information and consolidated information provided defendant with adequate notice of the charged offenses. The cases against defendant were properly consolidated.

The criminal action was briefly suspended pursuant to Penal Code section 1368, but was reinstated after evaluations of defendant which indicated competency. No error appears in the competency proceedings.

We find that the trial court did not err in resolving the in limine motion. As requested by the defense, the court admitted evidence of third party culpability.

No error appears to us in the selection of the jury.

Upon review of the record we have not discovered any objections or disputes over the admission or exclusion of evidence which require our review. We find no arguable search and seizure issues. Defendant did not make a motion to suppress evidence pursuant to Penal Code section 1538.5, and the record does not reveal any search and seizure issues to be considered.

We find no prejudicial error in the jury instructions. The parties essentially agreed upon the instructions to be given to the jury. The court correctly responded to the jury’s questions submitted during deliberations. We also find no indication of prosecutorial misconduct in the record.

The jury verdict was not defective in form or substance. The convictions are supported by substantial evidence.

We discern no errors in the sentencing of defendant. No impermissible information was considered by the trial court. Defendant was given the middle term of two years for the conviction of unlawfully driving or taking a vehicle, and the two-year term for the receiving stolen property was properly stayed (Pen. Code, § 654). The court was justified in imposing restitution fines pursuant to Government Code section 70373 and Penal Code section 1465.8, subdivision (a). No error appears in the calculation of sentence credits.

Appellant was represented by competent counsel throughout the proceedings.

Accordingly, the judgment is affirmed.

We concur: Marchiano, P. J., Banke, J.


Summaries of

People v. Austin

California Court of Appeals, First District, First Division
Feb 9, 2011
No. A128480 (Cal. Ct. App. Feb. 9, 2011)
Case details for

People v. Austin

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ERIN DAVID AUSTIN, Defendant and…

Court:California Court of Appeals, First District, First Division

Date published: Feb 9, 2011

Citations

No. A128480 (Cal. Ct. App. Feb. 9, 2011)