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The People v. Marlon Raye

April 13, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MARLON RAYE, DEFENDANT AND APPELLANT.



Super. Ct. No. 08F06347

The opinion of the court was delivered by: Butz ,j.

P. v. Raye CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COPY

Defendant Marlon Raye and his co-defendant were found guilty by a jury of vehicle theft. (Veh. Code, § 10851, subd. (a).) In a bifurcated court trial, the trial court found defendant had served three prior prison terms. (Pen. Code, § 667.5, subd. (b).) The trial court sentenced defendant to the mitigated term of 16 months, plus three years for the prior prison terms, for an aggregate term of four years four months in state prison.

On appeal, defendant contends: (1) the trial court erred in precluding evidence of a statement he made to the arresting officer; (2) the trial court improperly granted his request to represent himself during the trial on the prior prison term allegations; (3) the trial court erred in not reappointing counsel during the trial on the prior prison terms and at sentencing; and (4) the evidence was insufficient to support the true findings on the prior prison terms. We shall affirm the judgment.

FACTUAL BACKGROUND

On July 31, 2008, Detective Frank Ubois of the Sacramento Police Department set up a white 1992 Honda Accord as a "bait car" as part of a program designed to apprehend auto thieves. The car was equipped with electronic monitoring equipment, including GPS tracking, an automatic door locking device, and audio and video recording that were triggered to begin recording when a door was opened. The car was parked with the doors unlocked and the keys in the ignition.

At 4:43 a.m. on August 2, 2008, Officer Troy Hawley responded to a call that the alarm system in the bait car had been activated. On his way to the location where the bait car had been parked, Hawley saw the car being driven, followed it and called for backup. Just before the backup officers arrived, the driver of the bait car pulled into a convenience store parking lot located approximately a mile from where the bait car had been parked. The driver stopped at the gas pumps. Hawley pulled up behind the car and activated his overhead lights.

Defendant, who had been driving, was directed to exit the car and was arrested. Co-defendant Sandra Heffington was in the front passenger seat and was also arrested. Just over five minutes elapsed between the time the bait car alarm was activated and the time the doors were unlocked to permit defendant to exit in compliance with Officer Hawley's directions.

The tape from the bait car was played for the jury. It reflected that, after defendant and Heffington got in the car, Heffington told defendant to "burn rubber" to get out of there, and then she noticed the car did not have gas. They decided to get gas. Heffington then wondered aloud if the car had a tracking device, then assured herself it did not, and that "somebody left their keys in [it]." Defendant offered that it might be a "set up" but Heffington assured him they "would've been busted already" if that were the case. They discussed where they wanted to go and as they pulled into the gas station, they noticed the officer behind them. Heffington began cursing, stating they were "fucking through" and she "fucking knew it." As Officer Hawley was ordering them to put their hands in the air, defendant told Heffington, "[A]ll we gotta do is say our friend lend (sic) it to us. That's all we gotta tell 'em. Ol' boy told us to go put gas in it for 'em and that's it. Had the keys in it and everything." Heffington added, "And tell 'em you just picked me up from my house." Defendant then apparently noticed the doors being remotely unlocked and began cursing, "Damn. Damn. Fuck, dude, we're being arrested. They unlocked it, it was a setup car. They just unlocked it dude. Dude fucking set us up." The tape ended as Heffington was being taken into custody.

DISCUSSION

I. Exclusion of Hearsay

Defendant sought admission during cross-examination of Officer Hawley of an exculpatory statement he made to the officer after his arrest, to the effect that he had been given permission to drive the car by a person named Anthony. Defendant contends the trial court erroneously denied the request.

Defendant argues that the statement was admissible to show his intent. But it was the truth of defendant's statement that was relevant to defendant's case. The fact that he made the statement was not important. As such, the evidence was hearsay. Defendant cites no exception to the hearsay rule to support his ...


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