Opinion
A151124
02-08-2018
THE PEOPLE, Plaintiff and Respondent, v. ALBERTO NOGALES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR305226)
Alberto Nogales appeals his conviction by jury of unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)), and aggravated trespass (Pen. Code, § 602.5, subd. (b)). Assigned counsel submitted a Wende brief, certifying an inability to identify any issues for appellate review. Counsel also submitted a declaration confirming Nogales was advised of his right to personally file a supplemental brief raising any points which he wishes to call to the court's attention. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109-110.) We find no arguable issues and therefore affirm.
People v. Wende (1979) 25 Cal.3d 436.
BACKGROUND AND PROCEDURAL HISTORY
Nogales was charged by consolidated information with infliction of corporal injury on a former cohabitant (Pen. Code, § 273.5, subd. (a)), unlawful driving or taking of a motor vehicle (Veh. Code, § 10851, subd. (a)), misdemeanor aggravated trespass (Pen. Code, § 602.5, subd. (b)), and two counts of misdemeanor vandalism (id., § 594, subds. (a), (b)(2)(A)). The following evidence was adduced at trial.
Nogales was in a dating relationship with D.F. They lived together in in D.F.'s Vacaville condominium between approximately March 2012 and October 2013, when Nogales moved out. On November 22, 2013, D.F. returned home around 10:30 or 11:00 p.m. to find her front door broken and Nogales standing in her living room. They argued about Nogales being in her condo. D.F. testified that during the argument Nogales grabbed her around the neck and she could not breathe for a few seconds. When Nogales grabbed her, she either dropped her cell phone or he "did something to it," and it was broken. She ran to a neighbor's home. The neighbor testified that he heard D.F. arguing with someone that night. He saw D.F. exit her unit and throw something over the balcony. He then saw Nogales run outside, grab D.F.'s hair, and pull her back into the condo.
Vacaville Police Officer Jeremy Johnson responded to the scene and found D.F. upset and crying. Nogales had left. He saw that D.F.'s front door frame had damage consistent with forced entry, and her cell phone was damaged. D.F.'s car was missing from its assigned parking space, and a set of keys to the car was missing from the condo. D.F. did not give Nogales permission to take the car.
On November 25, 2013, Nogales was located by law enforcement at a casino and hotel in Nevada. Nogales initially denied knowing where D.F.'s vehicle was, but he later gave police the keys and directed them to the vehicle.
D.F. testified to a September 4, 2013 incident, when Nogales came to her home and threatened to "fuck up your tires and your car again." When D.F. checked the car, the windshield had been broken and a large rock was on the ground next to the vehicle. Nogales was observed in the area. Following another argument with Nogales on January 18, 2014, Nogales told D.F., "Go look at your tires you stupid fucking bitch." All four tires were flat. On April 2, 2014, D.F. said Nogales left her a voice mail message in a disguised voice saying, "Hi. This is Casey. Go look at your tires, honey." The tires were flat again.
Evidence of the January 18, and April 2 incidents was introduced over defense objection pursuant to Evidence Code section 1101, subdivision (b). The jury was instructed, consistent with CALCRIM No. 375, that consideration of this evidence was limited to issues of identity and motive for the September 2013 vandalism charge.
Nogales testified that he had moved out of D.F.'s condo about seven months before the November 22, 2013 incident. He had slept at the condo on November 21, 2013, and arranged to meet D.F. at the condo the following night. D.F. was not there when he arrived. He left to eat, then called her. D.F. told him she was out with friends and would meet him later. He went to her house to wait for her. He wanted to get some belongings from D.F.'s condo, including clothing, paperwork and some tools he needed for work. He did not have a key, but saw that the deadbolt was not locked and the door could be pushed open if he "kind of lift[ed] up." He entered the apartment to retrieve his items. D.F. came home as he was leaving. She began yelling at him and hit him on the head with her cell phone. He denied hitting or choking her, or pulling her hair. He said that as she was hitting and scratching him he pushed her away and she tripped and fell back. D.F. then got up and ran to the neighbor's house. Nogales took D.F.'s keys, put his belongings in her car, and drove away. He said that in the past, D.F. had allowed him to use her car. He tried to call D.F. on November 23 to return the car, but was unable to reach her. Nogales acknowledged he was at the condominium complex on September 4, 2013, visiting a friend who lived there, but denied damaging D.F.'s car. He also denied having anything to do with the damage to D.F.'s tires on January 18 or April 2, 2014. He acknowledged having suffered a prior felony conviction for possession of marijuana for sale.
The jury found Nogales guilty of unlawful driving or taking of a motor vehicle as a felony and aggravated trespass. He was found not guilty of infliction of corporal injury on a former cohabitant and the November 22 vandalism charge. The jury was unable to reach a verdict on the September 4 vandalism allegation and that count was dismissed on the prosecutor's motion.
Prior to sentencing, Nogales submitted a letter to the court, asking that his then assigned public defender be replaced. The motion was denied after a Marsden hearing. At sentencing, the court denied a defense motion to reduce the auto theft count to a misdemeanor and imposed a midterm sentence of two years to be served in county jail with one year suspended and served under mandatory supervision. A concurrent sentence of 157 days was imposed on the aggravated trespass conviction. Nogales filed a timely notice of appeal.
The public defender was not Nogales's trial counsel in the instant matter, but was then representing him in an unrelated case.
People v. Marsden (1970) 2 Cal.3d 118. We have reviewed the confidential transcript of the hearing, and Nogales's complaints appear to relate solely to investigation and preparation of the unrelated case. --------
DISCUSSION
Our review of the record reveals no arguable issues. Nogales was represented by competent counsel throughout these proceedings, and substantial evidence supports the verdicts. Introduction of evidence of other offenses under Evidence Code section 1101, subdivision (b), was well within the court's discretion, and its consideration was limited in any event to a charge of which Nogales was not convicted. Nogales demonstrates no abuse of discretion in sentencing, and fines, fees, and penalties were properly imposed.
DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
JONES, P. J. /s/_________
NEEDHAM, J.