Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Shahla Sabet, Judge, Super.Ct.No. FWV039499.
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Ramirez, P.J.
STATEMENT OF THE CASE
In an information filed November 13, 2006, by the District Attorney of San Bernardino, the defendant, Daniel Villagrana, was charged with one count of unlawfully driving or taking a vehicle in violation of Vehicle Code section 10851, subdivision (a) and one count of receiving stolen property in violation of Penal Code section 496d, subdivision (a). The information further alleged pursuant to Penal Code section 666.5 that appellant suffered a prior Vehicle Code section 10851 conviction, and that he served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).
Prior to trial, an Evidence Code section 402 hearing was held to determine the admissibility of a conversation between defendant and Melissa Ochoa which the police had secretly tape recorded while the two were in custody in the back seat of a patrol car. In the conversation, Ochoa, who was driving the victim’s car when police pulled it over, accused defendant of taking the car, and defendant, who was in the front passenger seat of the car, responded that he was on parole and that Ochoa should take the blame because she would be “cite released” and out within a week.
Defendant’s motion to exclude the tape recording of the conversation was denied. The court rejected defendant’s argument that the tape recording of his statements constituted a violation of his rights under the Fourth or Fifth Amendments to the federal Constitution. As for Ochoa’s statements, the court ruled they were admissible over defendant’s hearsay objection for the limited purpose of giving context to appellant’s admissions. The trial court further found that because Ochoa was charged as a codefendant in the case, she was unavailable as a witness and that the admission of her statements did not violate appellant’s rights under the Sixth Amendment.
Following a jury trial, defendant was convicted of violating section 10851 and acquitted of receiving stolen property. He waived jury trial on the enhancement allegations, which had been bifurcated, and the court found them to be true.
On February 14, 2007, the defendant was committed to state prison for four years and awarded the appropriate custody credits.
Defendant filed a notice of appeal on March 9, 2007.
STATEMENT OF FACTS
On October 20, 2006, Lisa Rodriguez picked up defendant from his home in Ontario, California, and drove him to her residence in Upland so that he could work on her car. She had known defendant for 10 to 15 years. Defendant was going to install speakers and change the oil, and Rodriguez gave him the keys in order to complete the work and repairs.
Defendant had worked on other cars belonging to Rodriguez, and in the past she had loaned other cars to him. However, they never specifically discussed whether he could borrow this car.
Appellant worked on the car in the driveway while Rodriguez remained inside. Around 4:00 p.m., Rodriguez noticed the car was gone. A short time later, defendant called and told her he was at his home and had her car. Rodriguez assumed defendant was going to return the car to her. But as time passed and that did not happen, Rodriguez called defendant’s house several times, speaking to him around 6:00 p.m. and again around 9:00 p.m. At first, she did not mention a time for defendant to return the car. However, by the second or third conversation, she told him she needed it so she could go to work at midnight, and that if he did not bring it back, she would report it stolen.
By 11:30 p.m., defendant had not returned the car and Rodriguez called the Upland police. She told the dispatcher that defendant had her car, and she wanted to report it stolen.
On cross-examination, Rodriguez testified she called the police because she wanted to know where her car was, she was worried it might have been in an accident or impounded, and she did not want to get in trouble with her parents as they had not given her permission to drive the car. She assumed from a previous experience that, inasmuch as she had given appellant the keys, the police would not help her unless she reported the car as stolen and agreed to prosecute.
Officer Macias of the Upland police arrived at Rodriguez’s residence around midnight, and after he admonished Rodriguez to not use the police as a car recovery service, she signed a stolen vehicle report, which was admitted in evidence. Rodriguez told Officer Macias she had given defendant the benefit of the doubt, but since he had not returned the car, she wanted to prosecute. As Officer Macias left, he learned the car had been recovered by Ontario police. He told this to Rodriguez, who apologized and said she did not want to press charges.
Ontario police had stopped the car a few blocks from defendant’s residence. The vehicle was being driven southbound, in the opposite direction from Upland where Rodriguez lived. Defendant was in the front passenger seat, and Melissa Ochoa was in the driver’s seat. The two were ordered out of the car and placed, alone, in the rear seat of the patrol car with the doors closed. A tape recorded was placed in the front seat without their knowledge. The tape-recorded conversation was played for the jury.
Over defendant’s objection, the audiotape of Rodriguez’s call to the Upland police was played for the jury as a prior inconsistent statement. Rodriguez told the dispatcher that she did not give defendant permission to drive her car, and “he basically stole it from me.” When the dispatcher asked if appellant had a driver’s license, Rodriguez said he did not. When asked if he was on probation or parole, she answered “I guess he is.”
Appellant did not testify or call any witnesses on his behalf.
DISCUSSION
Defendant appealed, and upon his request this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.
We offered the defendant an opportunity to file a personal supplemental brief, which he has not done.
We have now concluded our independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst, J., Miller, J.