Opinion
D070159
05-08-2017
THE PEOPLE, Plaintiff and Respondent, v. VON RYAN MANAGO, Defendant and Appellant.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE351779) APPEAL from a judgment of the Superior Court of San Diego County, Frances M. Devaney, Judge. Affirmed. Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
In this criminal case, appointed appellate counsel has filed a brief presenting no argument for reversal, but requesting that this court review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). We offered defendant Von Ryan Manago the opportunity to file his own brief on appeal and he filed a supplemental brief, which we address below. After independently reviewing the record for error, as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende, we affirm.
FACTS
For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.)
In April 2015, a woman called 911 after hearing someone rifling through a toolbox outside her home and then attempting to enter the house. The police officers who responded saw Manago walking away from the woman's house. When the officers approached Manago, he told them that he was waiting for his girlfriend to pick him up. The officers collected his identifying information and allowed him to leave.
In early June, at around 1:00 am, another resident in the area saw an African-American man who appeared to be pretending to jog down the street. The resident and another neighbor who was with him watched the man walk between two houses and take a small trash can from a yard and put it inside a dark Toyota sedan. The resident called 911, but the responding officers did not find anything. The resident continued to watch the area, and saw the same man walking and looking over the fences of several houses. The resident again called the police. The officers made contact with Manago, who told them that he was out for a walk because he couldn't sleep. The reporting resident could not positively identify Manago, and he was released.
On June 21, 2015, G.M., who was nine months pregnant, was awakened at around 4:00 a.m. by her barking dog. She was in bed with her husband and their two-year-old daughter. G.M. went back to sleep, but was awakened a second time when she felt something wet on her arm. She made eye contact with a man who was standing next to her bed. As soon as G.M. saw the man, he quickly exited the room. She then realized the man had been masturbating and that the wet substance on her arm was semen. She woke her husband, who called 911 while he searched the house. When the police arrived they took DNA samples of the semen on G.M.'s arm, as well DNA samples from her and her husband. The DNA sample taken from G.M.'s arm matched DNA that was later collected from Manago. The police also collected a blue latex glove that was found lying at the foot of the bed.
That same night, a nearby resident called 911 to report a suspicious African-American man who was looking into the windows of homes with a flashlight. The resident described the man as being in his mid-twenties, tall and skinny, and wearing dark clothing and blue latex gloves. Surveillance video from a home on the street showed a person walking along the road, and looking into and tampering with the bedroom window of a nearby home. Police took impressions and photographs of footprints beneath the window, which later were matched to Reebok tennis shoes worn by Manago.
On June 22, 2015, an officer investigating these incidents pulled over Manago, who was driving a dark Toyota Camry matching the description of the car reported weeks earlier. In the car the officer found blue latex gloves, like the glove found in G.M.'s bedroom. Manago agreed to be interviewed at the police station and voluntarily provided a DNA sample. Manago initially denied entering G.M.'s home and ejaculating on her. He was then arrested and interviewed a second time by police. In that interview, Manago admitted entering G.M.'s house and said that it was "[m]ore than likely" police would find his DNA there. Manago described watching G.M. from outside her window. Manago admitted that he removed one of his gloves in G.M.'s home and that he had dropped it there by accident. He also admitted that some time before the incident involving G.M., he had masturbated while watching another woman through a window and had ejaculated on a nearby wall and bush.
Manago was charged with first degree burglary (Pen. Code, §§ 459/460, count 1), indecent exposure after unlawful entry into an inhabited dwelling (§ 314, count 2), prowling and peeking (§ 647, subd. (i), counts 3 & 6), attempted first degree burglary (§§ 664, 459/460, count 4), and prowling (§ 647, subd. (h), count 5). The charging information also alleged that another person was present in the residence during the commission of the burglary charged in count 1, and that Manago had a prior conviction for residential burglary within the meaning of sections 667, subdivisions (a)(1) and (b) through (i), 1170.12 and 668. After four days of trial, the jury convicted Manago on counts 1, 2, 3, and 5 and acquitted on counts 4 and 6.
Undesignated statutory references are to the Penal Code.
Counts 1, 2, 3, and 6 related to G.M., count 4 related to the April incident, and count 5 related to the incident caught on the surveillance video. --------
At sentencing, the court selected count 1 as the base term and imposed the aggravated term of six years in prison. The court stayed the sentence on count 2 and ordered Manago to serve 180 days in jail on counts 3 and 5, with credit for time served. The court ordered Manago to pay a $3,600 restitution fine under section 1202.4, subdivision (b), imposed and stayed a parole revocation fine under section 1202.45 in the same amount, and also imposed court security fees, criminal conviction assessments, booking fees and a fine under section 290.3. The court ordered victim restitution in the amount of $530 to G.M. and retained jurisdiction on restitution issues. Manago was also ordered to provide specimens as required by section 296 and to register as a sex offender under section 290.
DISCUSSION
In his supplemental brief, Manago complains about several matters. He argues that his offense under section 459 is not a violent offense as defined by section 667, subdivision (c). He also contends that the imposition of a six-year sentence was improper because he had no prior convictions. Finally, he asserts that he is innocent and no evidence connected him to the crime scene.
Appellate counsel has identified the following issues that "might arguably support the appeal" (Anders, supra, 386 U.S. at p. 744): (1) whether appellant's conviction in count 1 must be reversed because the trial court failed to instruct on mistake of fact; (2) whether entry into a dwelling house with the intent to commit a violation of section 314, a wobbler, qualifies as entry with intent to commit "any felony" for the purpose of the burglary statute; and (3) whether the trial court abused its discretion by ordering appellant to pay $500 in restitution for installation of a video surveillance system in the victim's home.
We have reviewed the entire record as mandated by Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the issues raised by Manago and those referred to by appellate counsel. We have not discovered any reasonably arguable issue for reversal on appeal. Competent counsel has represented Manago on this appeal.
DISPOSITION
The judgment is affirmed.
/s/_________
AARON, J. WE CONCUR: /s/_________
McCONNELL, P. J. /s/_________
HALLER, J.