Filed 4/16/18 P. v. Burke CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

BOBBY BURKE,

Defendant and Appellant.
H044321
(Santa Clara County
Super. Ct. No. B1580618)
Bobby Burke appeals a four-year split sentence imposed after he pleaded no contest to one count of grand theft of personal property (Pen. Code, §§ 484, 487, subd. (a)) valued over $65,000 (Former Pen. Code, § 12022.6, subd. (a)(1)), and one count of taking or driving a vehicle without permission (Veh. Code, § 10851, subd. (a)) with a prior conviction for the same crime (Pen. Code, § 666.5, subd. (a)). Upon defendant’s timely appeal, we appointed counsel to represent him in this court. Appellate counsel filed a brief stating the case and facts but raising no issues. We notified defendant of his right to submit written argument on his own behalf. Defendant did not file written argument.
We have reviewed the entire record to determine if there are any arguable appellate issues. (People v. Wende (1979) 25 Cal.3d 436, 440–441.) We include here a brief description of the facts and procedural history of the case as well as the conviction and punishment imposed. (People v. Kelly (2006) 40 Cal.4th 106, 123–124.) Finding no arguable issue, we will affirm the judgment.
I. TRIAL COURT PROCEEDINGS
There are almost no facts describing defendant’s crimes in the record because he accepted a negotiated disposition before a preliminary hearing and he waived preparation of a full probation report. The summary report prepared by the probation department states that the manager of a Bloomingdale’s department store in Palo Alto told a probation officer that the total loss to the store from stolen jewelry and damage to windows and jewelry cases exceeded $120,000. The report also refers to a voicemail the probation officer left with the owners of a vehicle apparently taken by defendant without permission.
Defendant was charged by felony complaint with second degree burglary (Pen. Code, §§ 459, 460, subd. (b)) with an allegation that he took property worth over $65,000 (Pen. Code, former § 12022.6, subd. (a)(1)) ; grand theft of personal property (Pen. Code, §§ 484, 487, subd. (a)) with an allegation that he took property worth over $65,000 (Former Pen. Code, § 12022.6, subd. (a)(1)); taking or driving a vehicle without permission (Veh. Code, § 10851, subd. (a)) with a prior conviction for the same crime (Pen. Code, § 666.5, subd. (a)); concealing stolen property worth over $950 (Pen. Code, § 496, subd. (a)); and felony vandalism (Pen. Code, § 594). Bloomingdale’s was listed as the victim for the burglary and theft counts. The complaint also alleged defendant had served two prior prison terms (Pen. Code, § 667.5, subd. (b)).
As part of a negotiated disposition, defendant pleaded no contest to grand theft of property worth over $65,000 (Pen. Code, §§ 459, 460, subd. (b), former § 12022.6, subd. (a)(1)) and taking or driving a vehicle without permission with a prior conviction (Veh. Code, § 10851, subd. (a); Pen. Code, § 666.5, subd. (a)); he also admitted the two prior prison term allegations (Pen. Code, § 667.5, subd. (b)). The parties agreed to a four-year sentence, with two years to be served in county jail and two years to be spent under mandatory supervision. (Pen. Code, § 1170, subd. (h)(5)(B).) The prosecutor moved to dismiss the remaining counts (with a stipulation under People v. Harvey (1979) 25 Cal.3d 754), and also agreed to release defendant on his own recognizance (subject to a waiver under People v. Cruz (1988) 44 Cal.3d 1247) so that defendant could make memorial arrangements for his recently deceased grandfather. Much of the negotiated disposition was reflected on a written Advisement of Rights, Waiver, and Plea Form initialed and signed by defendant. The form omitted the value enhancement to the grand theft conviction and the Harvey waiver, but defendant admitted the value enhancement at the change of plea hearing and responded affirmatively when the court asked him: “So you understand, Mr. Burke, that means you’ll have to pay for any damages on the other counts[?]”
Defendant later expressed dissatisfaction with his appointed attorney and suggested he might want to proceed in propria persona so that he could move to withdraw his plea based on his attorney not pursuing a better negotiated disposition the district attorney’s office had allegedly offered. The trial court conducted a hearing on defendant’s motion under People v. Marsden (1970) 2 Cal.3d 118, which was denied. The court continued the matter to allow defendant to file a written request to represent himself for the purpose of moving to withdraw his plea. (Citing Faretta v. California (1975) 422 U.S. 806.) The appellate record contains no evidence that defendant ever filed that form.
The trial court ultimately sentenced defendant consistent with the negotiated disposition. The four-year sentence was structured as follows: the upper term of four years for taking or driving a vehicle without permission with a prior conviction (Veh. Code, § 10851; Pen. Code, § 666.5, subd. (a)); a concurrent three-year upper term for grand theft of personal property (Pen. Code, § 484, 487, subd. (a), 489); and a concurrent one-year term for the $65,000 value enhancement (former Pen. Code, § 12022.6, subd. (a)(1)). The court ordered that the final two years of defendant’s sentence be suspended and served under mandatory supervision. (Pen. Code, § 1170, subd. (h)(5)(B).) The trial court struck the punishment for the two prior prison terms (Pen. Code, §§ 1385, 667.5, subd. (b)), and dismissed the remaining counts per the parties’ agreement. The court imposed a $2,400 restitution fine (Pen. Code, § 1202.4, subd. (b)(1)) and a suspended $2,400 parole revocation fine (Pen. Code, § 1202.45); a $4 emergency medical air transportation fine (Gov. Code, § 76000.10); a $10 fine for grand theft (Pen. Code, § 1202.5, subd. (a)) plus $31 in penalty assessments ; an $80 court operations assessment (Pen. Code, § 1465.8); a $60 court facilities funding assessment (Gov. Code, § 70373); and a $129.75 criminal justice administration fee (Gov. Code, §§ 29550–29550.3). The court ordered victim restitution of $129,522.60 to Bloomingdale’s. Defendant received 428 days of presentence credit, based on 214 actual days and 214 days’ conduct credit (Pen. Code, § 4019).
We have reviewed the entire record and find no arguable issue.
II. DISPOSITION
The judgment is affirmed.

____________________________________
Grover, J.




WE CONCUR:




____________________________
Premo, Acting P. J.




____________________________
Greenwood, J.






People v Burke
H044321