Opinion
C080169
01-13-2017
THE PEOPLE, Plaintiff and Respondent, v. MATTHEW RAY BEARD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CM042279)
Appointed counsel for defendant Matthew Ray Beard asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
The parties stipulated to a factual basis from the probation report.
Defendant is a developmentally disabled 34 year old. He has two prior strikes for arson and assault with a deadly weapon. After his father died, defendant lived under the care of his aunt. Under her care, he had recently reverted to childlike behavior following a foot surgery.
When his aunt left him alone in their mobile home for two to three hours, defendant used a lighter to set the living room chair on fire. He then threw a kitchen rug on the fire, making it bigger. When it got too big, he went to his neighbor's house and told him of the fire. When the firefighters arrived the mobile home was fully engulfed in fire. Defendant initially lied to firefighters about how the fire started, but soon admitted starting it.
Prior to trial, the trial court suspended criminal proceedings to order an evaluation of defendant's competence to stand trial. Based on the report, defendant was found competent to stand trial.
Defendant then entered a plea of not guilty by reason of insanity. The trial court appointed an array of doctors to evaluate defendant's insanity plea. After the parties submitted on the issue of insanity, based on three of the reports, the trial court found defendant was sane when he committed the offense.
Defendant pleaded no contest to arson of an inhabited structure (Pen. Code, § 451, subd. (b)) and admitted to a prior strike. In exchange, his second strike and a prior prison term allegation were dismissed with a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754.) Defendant agreed not to bring a Romero motion attacking his remaining strike. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)
At sentencing, the trial court expressed its inclination to impose the upper term. Defense counsel argued for the middle term, citing defendant's developmental disability and depression, his early admission to setting the fire, his recent reversion to childlike behavior, and his aunt's failure to establish a routine with him. A friend of defendant's sister also spoke on his behalf, stating defendant has a serious mental incapacitation and the mind of a 12 year old.
The court imposed a 16-year term (the upper term, doubled for the strike), noting the circumstances in aggravation outweigh those in mitigation: the crime involved the threat of great bodily harm and damage of great monetary value, the conduct indicates a serious danger to society, his convictions as an adult are numerous and increasingly serious, and defendant has served a prior prison term. In mitigation, his prior performance on probation and parole have been satisfactory. He is developmentally disabled, receiving treatment, and pleaded at an early stage. The court also imposed various fines and fees.
Defendant timely appealed, and obtained a certificate of probable cause.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requests that we review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we have received no communication from defendant.
Having examined the record, we find no arguable error that would result in a disposition more favorable to defendant.
Contra Mason v. Superior Court (2015) 242 Cal.App.4th 773, 802 (dis. opn. of Blease, J.) ["The [People v.] Atkins [(2001) 25 Cal.4th 76] court's construction of section 451, which does not appear in the language of section 451, radically transforms the mental state for arson from the intentional burning of a relevant structure to the negligent burning of the structure, thereby making the proof of arson, the offense carrying the greater penalty, easier than the proof of unlawful burning"]. --------
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Nicholson, J. /s/_________
Butz, J.