Opinion
A118800
4-29-2008
THE PEOPLE, Plaintiff and Respondent, v. ERNESTO OCHOA URVANO, Defendant and Appellant.
Ernesto O. Urvano appeals from a final judgment entered after a trial at which a jury convicted him of one count of second degree vehicular burglary. His court-appointed counsel has filed a brief raising no issues and asking this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
Appellant was at trial referred to by the court and counsel as "Mr. Ochoa" or "Ernesto Ochoa."
PROCEEDINGS BELOW
By an information filed on March 16, 2007, the Contra Costa District Attorney charged appellant with a single count of second degree vehicular burglary (Pen. Code, §§ 459/460, subd. (b)) committed on February 5th. Tria commenced on May 8th, and three days later the jury returned a verdict of guilty as charged.
All dates are in that year.
All statutory references are to the Penal Code.
At a sentencing hearing on June 19th, the trial court denied appellant probation and sentenced him to the lower term of 16 months with credits of 135 days for time served and 66 days for conduct, for total credits of 201 days. The court imposed a mandatory restitution fine in the amount of $200 (§ 1202.4, subd. (b)) and imposed but stayed a parole revocation fine also in the amount of $200 (§ 1202.45). The court referred the amount of victim restitution (§ 1202.4, subd. (f)) to the probation department.
Notice of appeal was timely filed on August 10.
FACTS
On February 5th, a gray 1990 Honda Accord belonging to Hercules Miller was locked and parked in front of his apartment house on Fran Way in Richmond. Due to a problem with the clutch, the car could not be started. At about 8:00 a.m., after his wife told him she saw someone inside the car, Miller went onto the balcony of his apartment and saw a man he identified at trial as appellant attempting to start the vehicle. Miller screamed at the man to get out of his car and he did and "threw his hands up." The man was wearing faded blue jeans, a print T-shirt, black jacket, gloves and a multi-colored hat. The man then began briskly walking and then running toward Appian Way. Miller lost sight of the man as he went down hill. Miller told his wife to call the police, got dressed, and got into his Chevy Tahoe to pursue the man. Miller failed to find the man at a nearby shopping center and convenience store but, while driving east on San Pablo Dam Road, he saw the man walking westbound. Miller made a U-turn, pulled alongside the man, and recognized him as the person he had seen in his car about 25 minutes earlier. The man gave Miller "an amused look" and asked what he wanted. Miller said, "You are the guy that was in my car." When the man then picked up his pace, Miller followed in his truck. At some point, Miller testified, the man ran behind an apartment complex on San Pablo Dam Road. The man was still dressed as Miller had initially seen him, except that he was no longer wearing the hat.
Miller waited in his vehicle at the edge of the road. Eventually the man emerged from behind an adjacent building, still wearing the jeans, jacket and T-shirt. The man walked a short distance down San Pablo Dam Road and then went behind another building in the same apartment complex. Miller stayed in his vehicle, thinking the man had to come back out because there was no other means of exiting the complex. A short while later the man emerged, this time riding a bicycle and wearing a white tank top and no hat, but still wearing jeans. At no time did Miller have any doubt that the man he was following was the same person he had seen in his car. During this time, Miller was in contact with the police through a 911 operator who had been given his cell phone number by Millers wife. When the police arrived, Miller pointed out the man he had been following. When arrested, the man was wearing a white tank top, blue jeans and black shoes. He was riding a bicycle and sweating and out of breath.
When Miller returned home and inspected his Honda, he saw that a key had been placed into the door lock and broken off, and the ignition "had been broken to where you can turn it with a thumbnail." The vehicle did not contain anything of value and it did not appear to have been rifled through.
The only witnesses for the prosecution other than Miller were Richmond Police Officers Thor Simmons, Miguel Castillo and Ronald Vinson, all of whom corroborated portions of Millers testimony. Portions of Millers taped conversation with the 911 operator were played to the jury.
Near the close of the Peoples case, the court admonished appellant (who was provided a Spanish interpreter) of his right to testify in his own behalf, but that if he took the stand he could be cross-examined by the district attorney, who would be permitted to impeach appellants testimony with the use of a prior felony conviction for receiving stolen property. Appellant thereupon informed the court that he did not wish to testify and appellants counsel advised the court that he agreed with that decision. The court stated for the record its finding that appellant "knowingly, intelligently, and voluntarily waived his right to give testimony in the case." Appellant presented no defense witnesses.
DISCUSSION
The evidence is sufficient to support the judgment. It does not appear that any evidence received by the court should have been excluded, that admissible evidence offered by appellant was improperly excluded, that the prosecutor committed misconduct, or that any instruction was erroneously given by the court.
Appellants mental competence is not questionable and he was not otherwise unable to assist defense counsel, and he was represented by able counsel at every stage of the trial court proceedings.
There was no sentencing error.
There are no legal issues that require further briefing.
DISPOSITION
The judgment and sentence imposed are affirmed.
We concur:
Haerle, J.
Lambden, J.