P. v. Delane
Filed 7/31/07 P. v. Delane CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. CARL M. DELANE, Defendant and Appellant. | D050555 (Super. Ct. No. SCD204011) |
APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed.
Carl M. Delane entered a negotiated plea to second degree burglary (Pen. Code,[1] 459) and admitted having one prior strike within the meaning of section 667, subdivisions (b) through (i). The trial court sentenced Delane to 32 months in prison: double the lower term of 16 months for burglary . Delane's request for a certificate of probable cause was denied. (Cal. Rules of Court, rule 8.304(b).)
FACTS
On January 11, 2007, Delane entered a store with the intent to commit theft and was apprehended by the store's security force before he left the store. The merchandise he had taken was returned to the shelf. Delane was charged with one count of burglary and one count of petty theft with a prior. Pursuant to a plea bargain, Delane pled guilty to burglary and admitted the strike prior in exchange for a stipulated 32-month prison sentence and the dismissal of the petty theft with a prior count and three prison prior allegations. The factual basis for Delane's plea was: "I entered a store with the intent to commit theft."
Appointed appellate counsel has filed a brief setting forth evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error, as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to three possible but not arguable issues: whether Delane's negotiated plea was constitutionally valid; whether under the facts of the case, Delane was guilty of, at most, attempted petty theft; and whether Delane's trial counsel was ineffective.
We granted Delane permission to file a brief on his own behalf. He has responded. Delane contends the trial court erroneously sentenced him to 32 months in prison.
First, Delane argues he was only guilty of attempted second degree burglary. Delane is mistaken. A burglary is complete once the defendant enters the structure with the requisite intent; there is no additional element that requires the defendant consummate the burglary by committing a theft or any other felony. (People v. Allen (1999) 21 Cal.4th 846, 865-866.) On the other hand, an attempted burglary would be an ineffectual attempt at entry.
Second, Delane argues his 32-month prison term was not applicable to second degree burglary. Again, Delane is mistaken. The punishment for second degree burglary is "imprisonment in the county jail not exceeding one year or in the state prison." ( 461.) Section 18 provides, with certain exceptions not relevant here: "[E]very offense declared . . . to be punishable by imprisonment in a state prison, is punishable . . . for 16 months, or two or three years . . . ." Thus, the lower prison term for second degree burglary is 16 months. The court properly doubled this term because of Delane's prior strike conviction. ( 667, subd.(e)(1).)
A review of the entire record pursuant to People v. Wende, supra 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Delane on this appeal.
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.
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[1] All statutory references are to the Penal Code.
