Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF116168A. Gary T. Friedman, Judge.
Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Respondent.
Before Vartabedian, Acting P.J., Wiseman, J., and Cornell, J.
OPINION
INTRODUCTION
Appellant, Patrick Kenneth Stugard, was convicted after a jury trial of one count of second degree burglary (Pen. Code, §§ 459 & 460, subd. (b)). Appellant waived his right to a jury trial on a prior serious felony allegation within the meaning of the three strikes law and allegations that he served prior prison terms. In a bifurcated proceeding, the trial court found the prior serious felony allegation true as well as the prior prison term enhancements. The court subsequently found the prior prison term enhancements not to be true and struck them.
All further statutory references are to the Penal Code.
At the sentencing hearing on January 4, 2007, the trial court denied appellant’s motion to reduce the burglary conviction to a misdemeanor pursuant to section 17, subdivision (b). The court also denied appellant’s request that the court exercise its discretion under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to dismiss the prior serious felony conviction. The court sentenced appellant to prison for the midterm of two years which the court doubled to four years pursuant to the three strikes law. The court ordered appellant “to pay restitution pursuant to Penal Code [s]ection 1202.4 [, subdivision] (f) in an amount to be determined by the probation department, at the direction of the court, to M. D. Atkinson for related loss.” The court also ordered a $200 restitution fine and awarded appellant applicable custody credits. Appellant filed a timely notice of appeal.
The probation officer’s report did not have a calculation for the amount of victim restitution.
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on July 2, 2007, we invited appellant to submit additional briefing. To date, he has not done so.
FACTS
On the afternoon of September 18, 2006, Ben Lopez and his wife were returning from work after lunch. As Lopez pulled up to his business, he saw a man through the window of a vacant auto shop next door. Because the shop had been vacant for about six weeks, it was unusual for anyone to be inside.
The man inside the vacant shop appeared to be leaning against the top of a soda machine with both hands on it. The man was applying force to the machine. To Lopez, the man appeared to be trying to tip the machine over. Lopez parked his truck, told his wife to take a look at the man, and call the police.
Bakersfield Police Officers Dunn and Perman were dispatched to the vacant shop just before 4:00 p.m. According to Dunn, they arrived in four or five minutes after they were dispatched. Dunn directed Perman to the rear of the building and waited for additional officers.
As Dunn approached the front of the building, he saw appellant’s codefendant, Roger Stugard, through a large glass window. Roger Stugard was standing next to a vending machine. The officer made eye contact with Roger Stugard, who then ran to the rear of the building. Officer Dunn entered the building when Officer O’Nesky arrived. O’Nesky opened the door and Dunn called out for anyone in the building to show themselves.
As the officers entered the building, Roger Stugard came out of a rear room. While Roger Stugard was being arrested, appellant identified himself from inside the building. The officers commanded him to come out. Stugard exited the same room Roger Stugard had come from and was arrested. There were no signs that any doors had been forcibly opened.
On the floor where Roger Stugard had been standing next to the vending machine, Dunn found a hammer, which he photographed and collected as evidence. Dunn visually examined the hammer for fingerprints and did not find any. Dunn found that a portion of the vending machine where coins are inserted had been removed, leaving a hole. The machine’s locking mechanism had been pried open. It looked as if someone had tried to break open the machine with the hammer Dunn found on the floor, or another tool, in order to get into the money slots of the machine.
Both suspects told Dunn their residence was the address of the auto shop. There were no signs any of the doors to the building had been forcibly opened. Mel Atkinson, the manager of the company that owns the building, and Jenny Chiu, the building’s property manager, testified that neither suspect had permission to be there. Chiu, who had been in the building a few days earlier, explained that the machine was in good condition when she last saw it. Dunn stated he had stopped numerous transients in the area. He did not know if other people had also been inside the building.
After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.
DISPOSITION
The judgment is affirmed.