Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. Nos. VCR174636, VCR194789
Sepulveda, J.
Defendant appealed following (1) his conviction in connection with a residential burglary and (2) the revocation of his probation in a separate case. His counsel has asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.)
In Solano County Docket No. VCR174636 (probation case), a felony complaint was filed on August 13, 2004, alleging that defendant committed grand theft of the person (Pen. Code, § 487, subd. (c) —count 1) and felony possession for sale of cocaine base (Health & Saf. Code, § 11351.5—count 2). Defendant pleaded no contest to possession for sale of cocaine base in exchange for being placed on probation, the grand theft charge was dismissed, and defendant was placed on probation for three years. (As part of the plea agreement, defendant waived his right to appeal “the judgment and rulings of the court.”) Probation was revoked and then reinstated, with the modification that defendant serve 180 days in jail and waive 90 days in credits, after defendant admitted that he failed to maintain contact with his probation officer.
All statutory references are to the Penal Code unless otherwise indicated.
Defendant was arrested on November 27, 2007, in connection with a residential burglary that day in Vallejo (Solano Docket No. VCR194789 (burglary case)). A probation violation hearing was held in conjunction with the preliminary hearing in the burglary case, and the trial court found that defendant had violated his probation in the probation case. Defendant was charged by information in the burglary case with first degree residential burglary (§ 459—count 1), possession of a firearm by a felon (§ 12021, subd. (a)(1)—count 2), and receiving stolen property (§ 496, subd. (a)—count 3).
The trial court granted defendant’s motion in the burglary case to sever count 2 from counts 1 and 3. A jury found defendant guilty of counts 1 and 3, and substantial evidence supports the convictions. Trial testimony established that on the afternoon of November 27, 2007, juveniles broke into a house on Richardson Drive and took a safe, jewelry, a video game, money, a flat-screen television, and headphones. The juveniles were seen nearby placing the safe into the trunk of a car that defendant was driving, and the car then drove off. A witness wrote down the license plate number of the car, which was seen a short time later parked several blocks away near an apartment where defendant lived with his fiancée. Defendant was in the home; stolen property was found in the car defendant had been driving and in and around the home where defendant was found. Defendant admitted to police that he had been driving his fiancée’s car at the time of the burglary, but claimed that he only stopped to talk to the juveniles involved in the burglary and did not participate in the crime.
According to preliminary hearing testimony regarding count 2 (possession of a firearm by a felon), a gun also was found in the home.
Following trial, defendant pleaded no contest to count 2 (possession of a firearm by a felon) in exchange for a promise that he would receive a two-year term to be served concurrently with any other time imposed. (Defendant also waived his right to appeal the judgment and rulings of the court as to count 2 only.)
Defendant was sentenced in both the probation and burglary cases on September 22, 2008. The trial court sentenced defendant in the burglary case to the following term: the midterm of four years on count 1 (first degree burglary); plus the midterm of two years on count 2 (possession of a firearm by a felon), to be served concurrently; plus the midterm of two years on count 3 (receiving stolen property), stayed pursuant to section 654. The trial court sentenced defendant in the probation case on the possession count to one third the midterm (16 months), to be served consecutively with the sentence in the burglary case. Defendant was sentenced to a total of five years, four months in prison.
A timely appeal from the judgment in the burglary case followed. This court later granted defendant’s motion to amend the notice of appeal to include the judgment following a contested probation revocation hearing in the probation case.
Defendant was represented by counsel at all times. This court has reviewed the record, and there are no meritorious issues to be argued on appeal.
The judgments are affirmed.
We concur: Ruvolo, P. J., Rivera, J.