Filed 8/9/17 P. v. Jones CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



THE PEOPLE,

Plaintiff and Respondent,

v.

JACQUIZ EMANUEL JONES,

Defendant and Appellant.


E064997

(Super.Ct.No. FVI1500608)

O P I N I O N


APPEAL from the Superior Court of San Bernardino County. Debra Harris and John M. Tomberlin, Judges. Affirmed.
Charles R. Khoury, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
A jury convicted defendant and appellant, Jacquiz Emmanuel Jones, of first degree burglary (count 1; Pen. Code, § 459) and found true an allegation that another person, other than an accomplice, was present (§ 667.5, subd. (c)). Defendant subsequently admitted he had suffered a prior strike conviction (§§ 170.12, subds. (a)-(d), 667, subds. (b)-(i)) and prior serious felony (§ 667, subd. (a)(1)). The court sentenced defendant to an aggregate term of 17 years’ incarceration.
After defense counsel filed a notice of appeal, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the facts, a statement of the case, and identifying two potentially arguable issues: (1) whether the court erroneously withdrew defendant’s prior plea pursuant to his request; and (2) whether the court erroneously admitted the testimony of two witnesses purportedly pursuant to Evidence Code section 1101, subdivision (b) because the conduct of the perpetrator would not be considered “bad acts.” We affirm.
I. FACTS AND PROCEDURAL HISTORY
A woman who lived on El Evado testified that on March 8, 2015, she saw a Black man wearing a gray sweatshirt and jeans, knocking on the door of her neighbor’s house. She also saw an older model, white Acura parked in front of her house. A man was waiting in the vehicle. The man knocking on the door got into the car and they drove off.
The victim, who lives on the adjacent street of Hopland, testified that someone began ringing his doorbell and pounding on the door of his home that same day; he chose not to answer it. He got up to get some coffee and saw two Black men standing in his front yard; one of them was defendant; defendant was wearing a gray sweatshirt and jeans. The two men were standing next to the gate to his side yard. One of the men rattled the gate. The victim also saw a white car parked in front of his house.
Shortly thereafter, the victim heard talking in the backyard. He heard someone say, “Nobody’s home. I’m going to go in.” The victim then heard his kitchen window screen rattling. He saw someone peeking through the window. The victim saw fingers prying through the window and into the kitchen.
Defendant jumped through the window and into the kitchen. The victim pointed a gun at defendant and told him not to move. Defendant fled through the window. The victim fired three shots at him. The men jumped over the fence. The police arrived.
A neighbor who also lived on Hopland heard a jiggle in the back of her garage. She looked through the window and saw defendant wearing jeans trying to get in. The neighbor screamed and defendant ran across the street and tried to hide in a bush.
An officer responding to a burglary in progress call apprehended defendant at gunpoint at the intersection of El Evado and Hopland. Defendant was wearing jeans and a gray sweater. Defendant’s arm was bleeding. The officer conducted an infield lineup during which the victim positively identified defendant. The officer removed defendant’s shoes.
Another responding officer located fresh blood on the victim’s backyard fence. The shoes taken from defendant matched a shoeprint outside the victim’s kitchen window.
On June 26, 2015, pursuant to a plea agreement, defendant entered a plea of no contest to an interlineated count of attempted first degree residential burglary (§§ 664, 459) and admitted suffering a prior strike conviction. Pursuant to the plea agreement, the first degree burglary count and several enhancement allegations were dismissed. Additionally, the plea agreement stipulated the sentence would be the midterm of two years, doubled pursuant to the strike conviction for an aggregate term of incarceration of four years.
After receiving one continuance for sentencing due to a medical issue, on September 3, 2015, substitute counsel indicated defendant reported speaking with his original defense counsel about the prospect of withdrawing the plea. The court continued the matter again. On September 24, 2015, defendant’s original defense counsel appeared and requested a 30-day continuance so that defendant could further reflect upon moving to withdraw his plea. The court continued the matter.
On October 21, 2015, defendant moved to withdraw his plea after both his substitute attorney and the court had gone over the difference in exposure defendant faced by doing so. The People stated they had no opposition to the motion. The court noted: “I haven’t heard a basis to withdraw the plea.” “I don’t know [if just] the fact that both parties [agree] by stipulation” gives me the authority to withdraw the plea. The court offered to set the matter later that afternoon so that it could research whether the parties’ stipulation to withdraw the plea agreement gave the court authority to do so. Defense counsel noted that defendant did not understand that the offense to which he pled was a strike. The People stipulated to that basis for withdrawing the plea. The court found by stipulation of the parties that there was a basis for withdrawing the plea and ordered the plea withdrawn.
Prior to trial, the People sought admission of the two neighbor witnesses’ testimony pursuant to Evidence Code section 1101, subdivision (b); defense counsel objected. The court found the evidence more probative than prejudicial and noted that it would instruct the jury that it could only consider the evidence for the limited purpose of establishing the perpetrator’s identity or intent. The court so instructed the jury.
II. DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
J.


We concur:

RAMIREZ
P. J.

FIELDS
J.