Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR063674
Richman, J
Counsel appointed for defendant Baekky Khongsaengdao has asked this court to independently examine the record in accordance with People v. Wende (1979) 25 Cal.3d 436, to determine if there are any arguable issues that require briefing. Defendant was apprised of his right to file a supplemental brief, but did not do so. We have conducted our examination, conclude there are no arguable issues, and affirm.
FACTUAL BACKGROUND
By complaint filed July 11, 2006, defendant was charged with three counts: first degree residential burglary (Pen. Code, § 459/460, subd. (a)); unlawful possession of a firearm (§ 12031, subd. (a)); and resisting arrest (§ 148, subd. (a)(1).) The facts leading to these charges involved a residential burglary occurring between the hours of 10:00 p.m. on July 6 and 3:00 a.m. on July 7. At approximately 5:00 p.m. on July 7, Eureka Police Department personnel were dispatched to investigate a report of a male subject walking with a bag full of guns. Police responded to the area, and located defendant carrying a pillowcase containing rifles. Defendant dropped the pillowcases, began swiftly walking away, and then began to run, but was apprehended after a brief struggle. Search of the pillowcase revealed four rifles, three knives, several boxes of checks, mail, and prescription medications.
All statutory references, unless otherwise indicated, are to the Penal Code.
Since defendant pled guilty, the facts are from the probation report.
The elderly female victim reported that she was home alone sleeping when she awoke to the sound of something breaking. She thought it was caused by her son, but then realized he was not home. Hearing someone in her son’s room, she asked, “what are you doing in there?” Defendant responded, “I’m a friend of Joe’s.”
Police read the defendant the Miranda admonition, and he provided the following statement: “He and Joe are friends. He was upset with Joe for accusing him and another friend of stealing from Joe. He went to Joe’s house through an unlocked window in the back of the house. He knew Joe was not home but ‘grandma’ was (‘grandma’ referring to [victim]). He spoke with ‘grandma’ and asked here where Joe was. She never asked him to leave. He went into Joe’s room and closed the door. He was looking for money Joe kept in a file. He saw a shotgun and three other rifles in the corner. He found some knives.” Defendant said he took the guns to sell for money, and admitted taking the knives and guns.
Miranda v. Arizona (1966) 384 U.S. 436.
On August 16, 2006, the complaint was amended, and defendant entered a guilty plea to count one, entry of an inhabited dwelling with intent to commit a felony. The remaining counts were dismissed. Prior to accepting the plea the trial court explicitly advised defendant of his rights to a preliminary hearing, a jury trial, confrontation and cross-examination of witnesess, presentation of evidence, and the right to remain silent. Defendant said he understood he was giving up those rights by virtue of his plea.
The terms of the negotiated agreement called for a grant of probation, with less than one year of county jail time, in express recognition to minimize the possible immigration consequences of the conviction. On September 27, 2006, imposition of sentence was suspended and defendant was placed on five years’ supervised probation. Conditions of probation included a term of 364 days in county jail.
On September 10, 2008, a petition to revoke probation was filed, alleging failure to report to probation and cessation of payments towards restitution and fines. Defendant admitted that violation, and on December 8, 2008, was reinstated to probation with the modification that he serve an additional 180 days in county jail. Defendant agreed to waive all of his presentence credits earned prior to October 10, 2008.
On October 7, 2009, another petition to revoke probation was filed, alleging a failure to obey all laws, as well as possession of a controlled substance and other violations. This violation was based on a September 18, 2009 nighttime stop, when defendant was riding his bicycle. He was searched and found in possession of a glass pipe with crystalline residue and a small amount of marijuana. On April 12, 2010, defendant admitted the violation. On May 12, 2010, probation was terminated and the court imposed the upper term of six years on the first degree residential burglary offense.
At the sentencing hearing, the court stated its tentative decision to revoke probation and impose the upper term of six years. The court stated that the reasons were as listed in the probation report: defendant had been granted probation despite being ineligible because there was a stipulation that this was an unusual case; defendant had a prior theft; the probation department noted that defendant had 50 prior police contacts; that he had used a gardening tool when he broke into the home, and stole firearms; that there had been an 84-year old woman sleeping in the home at the time of the offense; and that after leaving the home defendant had apparently loaded one of the weapons.
The probation report further indicated that he could or would not comply with probation, and that he had been arrested for petty theft.
Defense counsel objected to the statement in the probation report that defendant had been stopped over 50 times by the police. Counsel argued that police contacts were not a valid aggravating factor, and that the underlying offense was defendant’s only conviction. Counsel also objected to the unfounded statements by the victim that defendant had loaded a firearm while in the home. Counsel argued that the probation report failed to note the mitigating factors that defendant had no prior record, that he had early on acknowledged guilt, and that he had exercised caution so that no harm would come to the victims. Counsel asked for probation to be reinstated given that defendant had been complying with the terms of his probation, and that the conduct leading to the violation was not overly serious.
The court went on to impose the upper term of six years without an additional statement of reasons. It determined that defendant was owed credits of 177 actual custody days, and 88 conduct days under section 4019. A $1200 restitution fine was imposed, along with a suspended parole restitution fine under sections 1202.4 subdivision (b) and 1202.45. A $1200 probation revocation fine was imposed under section 1202.44.
On May 14, 2010, a timely notice of appeal was filed.
DISCUSSION
Pursuant to our obligations under People v. Wende, supra, 25 Cal.3d 436, we have conducted a review of the entire record and have found no arguable issues requiring briefing.
Defendant was at all times represented by competent counsel who zealously guarded his rights and interests.
The sentence imposed is authorized by law.
The judgment of conviction is affirmed.
We concur: Kline, P.J.Haerle, J.