Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD206393, Theodore M. Weathers, Judge.
IRION, J.
A jury convicted Hung Vien Tran of unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a)), receiving or withholding a stolen vehicle (Pen. Code, § 496d), receiving stolen property (§ 496, subd. (a)) and unlawfully possessing burglary tools (§ 466). Tran also admitted the truth of five prior prison convictions. (§ 667.5, subd. (b).) The trial court sentenced him to eight years eight months in prison: the upper term of three years for auto theft plus an additional eight months for possession of stolen property, plus five years for the five prison priors.
All statutory references are to the Penal Code unless otherwise indicated.
FACTS
Early in the morning on May 8, 2007, Geberhiwot Buluts noticed that his 1993 Acura Legend had been stolen from its parking space on a public street in San Diego. That evening, San Diego Police Officer Scott Holden performed a traffic stop on Buluts's car, which had been reported stolen. Tran, who was driving the car, was arrested. Police found a small bag containing spark plug chips — often used to break into cars — in his pants pocket, along with a passport in the name of Edward Hurff. (See § 466 [listing "spark plug chips" among prohibited burglary tool].) The passenger in the stolen vehicle, Tri Thanh Bui, was also arrested; Bui had a "shaved" key in his wallet. The police also observed a shaved key "jammed into the ignition" of the car. Shaved keys — regular car keys that have been filed down so that they fit into the ignition of most cars and, once inserted, can be manipulated to start the car — are used to "break into, and drive, stolen vehicles."
Bui was also charged in the case, but his trial was severed from Tran's, and he eventually pleaded guilty.
A search of the car revealed that the lock on the glove compartment had been tampered with and damaged. Inside the glove compartment, the officers found the title to the Acura as well as the title to another car, registered in the name of Noe Mendosa Hernandez. The owner of the passport found in Tran's pants pocket and the owner of the title found in the glove compartment testified that those items had been left in their cars, which had been stolen prior to May 8.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks that this court review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible, but not arguable, issues: (1) whether the trial court abused its discretion by imposing the upper term based on Tran's "extensive prior criminal history, as well as on his probation status and poor performance while on parole" (see People v. Sandoval (2007) 41 Cal.4th 825, 847); (2) whether the trial court erred in sentencing Tran consecutively on counts 1 (auto theft) and 3 (receiving stolen property) (see Cal. Rules of Court, rule 4.425); (3) whether the trial court erred in sentencing Tran to a concurrent term for count 4 (burglary tools), rather than staying the sentence pursuant to section 654 (see In re Adams (1975) 14 Cal.3d 629, 634); and (4) whether the trial court erred in instructing the jury with Judicial Council of California Criminal Jury Instructions (Jan. 2006 ed.), CALCRIM No. 401, aiding and abetting (see People v. Beeman (1984) 35 Cal.3d 547, 560-561).
We granted Tran permission to file a brief on his own behalf. He has not responded.
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436, and Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by appellate counsel, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Tran on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, Acting P.J., McINTYRE, J.