Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. Nos. 21100401, 21100402
Lambden, J.
Kevin D. Sparks appeals from his convictions and imposition of sentence for one count of burglary in the first degree, one count of receiving or buying stolen property, and one count of possession of burglar tools. (Pen. Code, §§ 459, 496, 466.) His counsel raises no issues and asks this court for an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436.
All further statutory references are to the Penal Code unless otherwise indicated.
Jean Midgley appeals from her convictions and imposition of sentence for one count of burglary in the first degree, one count of receiving or buying stolen property, and one count of possession of burglar tools. (§§ 459, 496, 466.) Her counsel raises no issues and asks this court for an independent review of the record pursuant to Wende, supra, 25 Cal.3d 436.
Sparks and Midgley each filed a separate, and timely, notice of appeal. It is a customary administrative procedure of the court for both appeals to receive the same case number as they arise out of a single trial court record.
BACKGROUND
Facts
Approximately 2:20 p.m. on July 7, 2009, Edward Nichols parked his car near the entrance of his apartment on Vermont Street in San Francisco. From his car, Nichols saw an African-American man and a Caucasian woman on the walkway that leads from the front door of his apartment to the sidewalk. The man and woman walked away from Nichols’s apartment, stepped down onto the sidewalk, walked directly in front of Nichols’s windshield, and then continued walking north towards Mariposa Street. Nichols saw that the man was carrying a backpack and the woman was carrying a backpack and a tan bag. Nichols then entered his apartment and called the police upon finding a broken window and realizing that his apartment had been ransacked. Nichols gave the police a detailed description of the appearance and clothing of the two individuals he saw on his apartment walkway. Approximately 10 minutes later, the police drove Nichols to the corner of 16th Street and Potrero and asked him if he could identify anyone. Nichols identified two individuals as the people that he had seen on his apartment walkway. The police arrested the two individuals, Sparks and Midgley, and collected the bags in their possession.
Later that day at the police station, Nichols surveyed the items collected from Sparks and Midgley and identified most of them as his personal belongings, including jackets, scarves, alcohol, sinus medication, lighters, cameras, and watches. In the tan backpack carried by Midgley, the police also found items that did not belong to Nichols: two screwdrivers and a walkie-talkie. The police found the companion walkie-talkie, of the same color and brand, in the right pants pocket of Sparks when he was arrested.
That same afternoon, two police officers from the Crime Scene Investigations Unit inspected Nichols’s apartment and determined that the point of entry for the crime was the broken window that Nichols noticed upon entering his apartment. On the outside of the house, the officers found pry marks on the window frame, likely made with a screwdriver. They also found Sparks’s fingerprints, from his left ring and left middle fingers, on the broken glass. In the backyard, just below the broken window, the officers found a shoe print with a diamond-shaped pattern that matched the pattern on the shoes Sparks was wearing that day.
Procedure
On December 21, 2009, the People filed an information charging Sparks with the following three counts: count one for burglary in the first degree, count two for receiving or buying stolen property, and count three for possession of burglar tools, specifically screwdrivers and walkie-talkies. (§§ 459, 496, 466.) The information also alleged that Sparks had previously been convicted 10 times of a felony. The People alleged that Sparks’s prior felony convictions made him ineligible for probation pursuant to section 1203, subdivision (e)(4). Further, relevant to sentencing, the People alleged that two of the prior convictions, one for assault with a firearm and another for burglary of the first degree, constituted “serious” felonies within the meaning of section 667, subdivision (a)(1), as well as “conviction[s] and juvenile adjudication[s]” within the meaning of sections 667, subdivisions (d) and (e), 1170.12, subdivisions (b) and (c), and that nine of Sparks’s prior convictions and resulting terms of imprisonment fell within the meaning of section 667.5, subdivision (b).
On December 21, 2009, the People filed an information charging Midgley with the following three counts: count one for burglary in the first degree, count two for receiving or buying stolen property, and count three for possession of burglar tools, specifically screwdrivers and walkie-talkies. (§§ 459, 496, 466.)
The appellants were tried together in a jury trial that commenced on February 18, 2010. The court ruled on all motions in limine on February 22, 2010. The court denied the People’s request to play a recording of Nichols’s 911 phone call during opening statements. As to the People’s motion to use Sparks’s prior felony convictions for impeachment purposes if he testified, the court ruled that only five of the nine convictions could be used. Finally, the court granted the People’s motion to dismiss Sparks’s prior felony conviction for assault with a firearm, alleged for sentencing purposes pursuant sections 667, subdivisions (d) and (e), 1170.12, subdivisions (b) and (c); the alleged conviction would no longer count as a strike for purposes of the Three Strikes Law. The alleged prior conviction was not dismissed for sentencing purposes pursuant to section 667, subdivision (a); the conviction, if proven, would still result in a five-year sentence enhancement.
The court granted Sparks’s motion to exclude any mention by the People of statements made by him to the police; the issue of whether the statements could be used for impeachment purposes would be decided at a later date if he chose to testify. The court denied Sparks’s motion to sever his case from Midgley’s case on the basis that the People did not anticipate using Midgley’s out-of-court statements that potentially implicated Sparks. The court also denied Sparks’s motion to dismiss due to an alleged violation of his right to a speedy trial.
The court granted Midgley’s motion in limine to exclude any mention of prior bad acts, specifically misdemeanor arrests and convictions, though the People could use the acts underlying a 2006 misdemeanor conviction for impeachment purposes if Midgley chose to testify.
At trial, the People presented the testimony of three witnesses: Edward Nichols, Officer Reginald Scott, and Officer Pamela Cunningham. Counsel for Sparks did not present evidence for the defense, nor did counsel for Midgley. Neither Sparks nor Midgley testified at trial.
The jury found both Sparks and Midgley guilty of all three counts: count one for violating section 459, a felony, burglary in the first degree, count two for violating section 496, a felony, receiving or buying stolen property, and count three for violating section 466, a misdemeanor, possession of burglar tools.
For purposes of sentencing, Sparks chose to admit his prior convictions, waiving his right to a jury trial. Although the information alleged nine prior convictions relevant to section 667.5, subdivision (b), which imposes a one-year sentence enhancement for prior felony convictions that resulted in a prison sentence, the court deemed that only six of the convictions could be used as the basis for sentence enhancements. Sparks admitted all six prior felony convictions. He admitted a prior felony conviction for violating section 459, first degree burglary, which was relevant for two sentence enhancements: sections 667, subdivisions (d) and (e), 1170.12, subdivisions (b) and (c), which double the term imposed for the current felony conviction if a prior felony conviction can be proven, and section 667, subdivision (a)(1), which imposes a five-year enhancement for the conviction of any serious felony. Sparks also admitted a prior felony conviction for violating section 245, subdivision (a)(2), assault with a firearm, for purposes of the five-year enhancement set out in section 667, subdivision (a)(1).
On the recommendation of the People, the court sentenced Sparks to 18 years in state prison for count one: the midterm sentence of four years in prison, which became eight years pursuant to sections 667, subdivisions (d) and (e), 1170.12, subdivisions (b) and (c), plus an additional five years for each of the two prior felony convictions to which Sparks admitted. For count two, the court imposed a sentence of two years in state prison, which was stayed pursuant to section 654. For count three, the court imposed a sentence of six months in county jail and applied six months of custody credit for time served.
Counsel for Sparks requested that the court dismiss the five-year enhancement for the 1984 first degree burglary conviction and impose a sentence of 13 years in state prison. Section 1385, subdivision (b) states that a judge is not authorized to strike a prior conviction of a serious felony for purposes of the enhancement set out in section 667. Therefore, Sparks’s counsel argued, imposing an additional five years in state prison for an offense committed 26 years earlier constituted cruel and unusual punishment in violation of Sparks’s Eighth Amendment right. He requested that the court evaluate the length of the sentence in light of Sparks’s mental health problems, as well as the facts that no one was injured during the commission of the burglary and Nichols received all of his possessions back. The court declined to dismiss the five-year enhancement, noting that it could have imposed a sentence of 28 years in state prison by applying the higher base term and adding all of the relevant enhancements, and that the case could have been tried as a third-strike felony, subjecting Sparks to mandatory life in prison. We conclude there was no error in sentencing.
For count one, the court sentenced Midgley to the low term of two years in state prison with 423 days of credit applied. For count two, the court imposed the mitigated term of 16 months in state prison, to be stayed pursuant to section 654. For count three, the court imposed 180 days in county jail, with 180 days credit applied for time served. The court declined to impose the People’s recommended sentence of five years probation and one year in county jail, with all custody credits waived, to be served in a residential drug treatment program. The court stated that because Midgley was ineligible for the only applicable county rehabilitation program, she would serve the year in county jail without the proper drug treatment resources available to her in state prison. In addition, waiving the custody credits would result in Midgley serving more time in county jail than she would if she retained her custody credits and was sentenced to state prison. We conclude there was no error in sentencing.
DISCUSSION
In accordance with People v. Kelly (2006) 40 Cal.4th 106, Sparks’s appellate counsel filed a brief raising no arguable issues, Sparks was apprised of his right to file a supplemental brief, which he did not exercise, and this court conducted an independent review of the entire record.
Midgley’s appellate counsel filed a brief raising no arguable issues, Midgley was apprised of her right to file a supplemental brief, which she did not exercise, and this court conducted an independent review of the entire record.
Our independent review revealed no arguable issues other than sentencing, discussed above.
DISPOSITION
The judgments against appellants Kevin D. Sparks and Jean Midgley are affirmed.
We concur: Kline, P.J., Richman, J.