People v. Alvarado CA2/2

Filed 12/16/22 P. v. Alvarado CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B317626

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA495872) v.

ARTURO ALVARADO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. David R. Fields, Judge. Affirmed. Olivia Rose Meme, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Kenneth C. Byrne and Blake Armstrong, Deputy Attorneys General, for Plaintiff and Respondent. _________________________________

Arturo Alvarado appeals the judgment entered following a jury trial in which he was convicted of possession of methamphetamine for sale (Health & Saf. Code,1 § 11378; count 1) and driving or taking a vehicle without consent (Veh. Code, § 10851, subd. (a); count 2). The trial court found the prior strike allegation true and sentenced appellant to an aggregate term of 5 years 4 months in state prison. Appellant’s sole contention on appeal is that the trial court prejudicially erred in failing to instruct the jury on simple possession as a lesser included offense of possession of methamphetamine for sale. Although the trial court erred in failing to give the lesser included offense instruction, we conclude the error was harmless. FACTUAL BACKGROUND On May 16, 2021, around 1:50 p.m., Ayanna Stewart parked the silver 2020 Nissan Rogue SUV she had rented from Enterprise Rent-A-Car in the parking lot of an Office Depot store on South Figueroa Street in Los Angeles. Without locking the car, and leaving the key fob in the center console, Ms. Stewart entered the store. When she returned to the parking lot approximately 20 minutes later, the vehicle was gone. Ms. Stewart called several tow companies, but none had towed the vehicle away. The next day she reported the SUV stolen to Enterprise and filed a stolen vehicle report with the Los Angeles Police Department. Around 4:00 in the morning on May 28, 2021, Los Angeles Police Officer Justin Freund and his partner were on patrol near the corridor of Grand Avenue between Gage and Florence