Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CC778191
OPINION
Bamattre-Manoukian, Acting P.J.
I. INTRODUCTION
Defendant Hilario Pajardo Agbulos III pleaded no contest to one count of first degree burglary (Pen. Code, §§ 459, 460, subd. (a)). He also admitted the allegations that he had one prior serious felony conviction (§ 667, subd. (a)) and one prior serious or violent felony conviction within the meaning of the Three Strikes law (§§ 667.5 subd. (c), 1192.7, subd. (c)). The trial court sentenced defendant to a total term of nine years in the state prison.
All further statutory references are to the Penal Code.
Defendant filed a timely notice of appeal, and we appointed counsel to represent him in this court. Appointed counsel has filed an opening brief that states the case and facts but raises no issue. We notified defendant of his right to submit written argument in his own behalf within 30 days. The 30-day period has elapsed and we have received no response from defendant.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record. Following the California Supreme Court’s direction in People v. Kelly, supra, 40 Cal.4th at page 110, we provide “a brief description of the... procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed.”
II. FACTUAL AND PROCEDURAL BACKGROUND
Our summary of the facts is based upon the information available in the probation reports, since no preliminary hearing was held and no police reports were included in the record on appeal.
A. Prior Offense
Defendant, age 20, participated in a robbery on December 13, 2001. According to the victim, a 47-year-old woman, the robbery occurred as she was walking towards a Taco Bell restaurant in the area of a movie complex. Defendant approached the victim from behind and engaged her in a brief conversation. Defendant then pushed her into the wall of the Taco Bell, causing her to fall to the ground. While she was on the ground, defendant kicked her leg and forced her purse from her hands. After grabbing the purse, defendant fled to the movie complex parking lot. Several “Samaritans” chased defendant, who got into a black Honda automobile. When defendant left the Honda and fled the area on foot, the victim recovered her purse but her cash in the amount of $981 was missing. Police investigation indicated that the robbery was planned by Darrin Fuller, who orchestrated the victim’s transportation to the crime scene after she had cashed a check at a check cashing store.
Defendant subsequently pleaded no contest to robbery in the second degree (§§ 211, 212.5, subd. (c)). He was ordered to serve a one-year county jail sentence and placed on formal probation for five years, which expired on October 18, 2007, “under normal terms and conditions.” In later proceedings, defendant gave a version of the robbery incident that was different than the victim’s version. He stated that he had performed a “drug sale scam,” in which the victim gave him $200 in cash and he gave her a paper bag that was supposed to contain drugs. Defendant denied using any force against the victim.
B. Current Offense
Defendant’s current offense occurred on August 27, 2007. At approximately 12:31 p.m., three men, including defendant, forced their way into the victim’s residence and stole two handbags, a computer, a camera, camcorders, and jewelry. Police were notified and responded to the victim’s residence. Two of the men attempted to flee on foot, but were arrested nearby after leaving much of the stolen property behind. Defendant attempted to evade the police by hiding in a trash can, which he departed after being seen by a witness. His cell phone was left behind and as a result the police were able to determine his identity and issue an arrest warrant. During the police investigation, one of the codefendants stated that the three men, including defendant, “ ‘worked as a team’ ” to burglarize homes and utilized a fourth man as a driver and lookout.
It is unclear from the record available on appeal whether defendant was on probation at the time of the August 27, 2007 offense. While the probation report of June 12, 2008, indicates that defendant’s probation expired on October 18, 2007, the same report also states that defendant’s probation had expired one month prior to the August 27, 2007 offense.
Defendant gave a different version of the incident to the probation officer. According to defendant, he did not have any involvement in the burglary and did not participate in any other burglaries with the codefendants. He was present at the scene of the August 27, 2007 burglary because he was going to help a friend of one of his codefendants, Jose Cuadra, who needed assistance in moving. Defendant had been picked up by the other codefendant, Jess Redondo, who stopped his vehicle in a San Jose neighborhood where they were supposed to meet Cuadra. Redondo left the vehicle and defendant, after finishing a telephone call with his girlfriend, left the vehicle to go look for him. Defendant heard police sirens and panicked because he was under the influence of marijuana. He fled the area by jumping over the fences of nearby residences.
Defendant was subsequently charged with first degree burglary (§§ 459, 460, subd. (a); count 1). The complaint also alleged one prior serious felony conviction for robbery (§ 667, subd. (a)) and one prior serious or violent felony conviction for robbery within the meaning of the Three Strikes law (§§ 667.5 subd. (c), 1192.7, subd. (c)). On May 16, 2008, defendant waived his right to a preliminary hearing and pleaded no contest to count 1 and admitted the prior conviction allegations.
After his plea, defendant underwent a neuropsychological evaluation by a court-appointed psychologist, Robert Perez, Ph.D., who issued a report dated December 19, 2008. The evaluation was requested due to “concerns regarding the affect of a possible childhood [head] injury on his ability to both understand the severity of his alleged participation in a burglary and to understand the implications of a plea....” In his report, Dr. Perez determined that defendant, who had average to low average intelligence, showed “a very mild impairment” that affected his ability to process information that is presented “in large quantities on a single occasion.” However, Dr. Perez concluded that defendant did not have a cognitive impairment that would prevent him from understanding the nature and consequences of his “actions at the time of their alleged commission” or the nature and consequences of his guilty plea.
Thereafter, defendant brought a motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) in which he requested that the trial court dismiss the prior strike allegation in the interests of justice. He asserted that he was a nonviolent felon who needed psychiatric care and a residential drug treatment program and asked that consideration be given to his “borderline cognitive abilities.” The People opposed the motion, contending that the burglary offense indicated planning and sophistication. The People also noted that during the eight years that defendant had been an adult, he had committed two serious and violent crimes and had been on probation for five years.
The trial court denied the Romero motion on March 5, 2008, finding that defendant had given statements about the prior and current serious offenses in which he sought to reduce his culpability. The court also noted that defendant had committed the current offense despite having served a period of probation for the prior offense. After denying the Romero motion, the trial court imposed a sentence of four years on count 1 (the lower term of two years, doubled under the Three Strikes law) and a consecutive sentence of five years pursuant to section 667, subdivision (a).
On March 11, 2009, defendant filed a timely notice of appeal. Having carefully reviewed the entire record, we conclude that there are no arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d at pp. 441-443.)
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: MCADAMS, J., DUFFY, J.