P. v. Fields

Filed 8/22/07 P. v. Fields CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.

Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *

Defendant Michael Christopher Fields appeals from a judgment sentencing him to prison for burglary. We appointed counsel to represent defendant. Counsel filed a brief containing a statement of the case and the facts and, while not arguing against her client, failed to raise any specific issue. We gave defendant 30 days to file written argument on his own behalf. That period has passed and we have received no communication from him. Under People v. Wende (1979) 25 Cal.3d 436, we have examined the entire record to see if any arguable issue is present.

This case arose from the following circumstances. The security guard of an apartment building testified that, shortly before 4:00 a.m., three men ascended the stairs to the second floor and entered apartment 9. At the time, apartment 9s occupants were home, but asleep. One occupant awoke and observed a man searching through her jewelry. After the intruders left, the occupants discovered a DVD player, several DVD discs, and a cell phone were missing. The security guard directed the police to another unit in the building. Receiving permission to enter the unit, the police found three men fitting the intruders descriptions, one of whom was defendant. The police did not find the DVD discs, but they discovered the missing DVD player underneath a sweatshirt on which one of the suspects was lying and the missing cell phone in defendants pocket. After his arrest, a police officer advised defendant of his rights under Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] and he agreed to speak. Defendant admitted he entered apartment 9, claiming he thought there was a party in progress. Upon learning otherwise, defendant claimed he left the premises without taking anything.

The prosecution charged defendant and two others with first degree burglary (Pen. Code,  459 & 460, subd. (a); all further statutory references are to the Penal Code), and alleged nonaccomplices were present when the crime occurred ( 667.5, subd. (c)(21)). The information also alleged defendant had previously suffered a serious or violent felony conviction ( 667, subds. (a)(1), (d) & (e)(1), 1170.12, subds. (b) & (c)(1)). Defendant entered a not guilty plea and denied the enhancements. The other suspects apparently plead guilty to the charge.

The court bifurcated the prior conviction allegations at defendants request after he waived the right to a jury trial on it. The jury later returned a guilty verdict for first degree burglary and found nonaccomplices were present when the crime occurred.

The trial court initially sentenced defendant to 13 years in prison, consisting of the four-year midterm doubled under the Three Strikes law, plus a consecutive five-year term under section 667, subdivision (a)(1). Later the same day, it vacated the original sentence, expressing doubt on whether the prior conviction qualified as a prior serious or violent felony. Subsequently, the court granted a new trial on the prior conviction allegation and found it did not so qualify. It then sentenced defendant to the six-year upper term for burglary, citing his prior conviction and the fact the crime involved a nighttime entry of an occupied residence as circumstances in aggravation.

Counsels brief identifies insufficiency of the evidence as to defendants identity and intent, failure to instruct on attempt and trespass as lesser included offenses, and the courts imposition of the upper term as potential claims to assist our independent review. None have any merit.

Defendants admission that he entered apartment 9 combined with his possession of one occupants cell phone shortly thereafter support his burglary conviction. (People v. McFarland (1962) 58 Cal.2d 748, 754; People v. Citrino (1956) 46 Cal.2d 284, 288-289.) Since defendant admittedly entered apartment 9, he was not entitled to an instruction on attempted burglary. (People v. Failla (1966) 64 Cal.2d 560, 569; People v. Aguilar (1989) 214 Cal.App.3d 1434, 1436.) Trespass is not a lesser included offense of burglary (People v. Lohbauer (1981) 29 Cal.3d 364, 369) and, absent permission of the prosecution, defendant was not entitled to a lesser related offense instruction. (People v. Martinez (2002) 95 Cal.App.4th 581, 586.)

A single valid aggravating factor will support an upper term sentence (People v. Osband (1996) 13 Cal.4th 622, 728), and defendants prior conviction satisfied that requirement. (People v. Black (2007) 41 Cal.4th 799, 815.) Once a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term . . . . (Id. at p. 813.) Thus, the trial court could also use the circumstances of the burglary exceed[ing] the minimum necessary to establish the elements of the crime, particularly the jurys finding that nonaccomplices were present when it occurred, as a second aggravating factor. (People v. Castorena (1996) 51 Cal.App.4th 558, 562.)

The judgment is affirmed.

RYLAARSDAM, J.

WE CONCUR:

SILLS, P. J.

FYBEL, J.

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