Filed 12/7/18 P. v. Friedland CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

INTRODUCTION

Defendant Matthew Caleb Scott Snider Friedland appeals his sentence following a guilty plea to one count of first degree residential burglary armed with a firearm. Defendant’s counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 and requests that we conduct an independent review of the record. Defendant was informed of his right to file a supplemental brief and did not do so. Having independently reviewed the record, we conclude there are no issues that require further briefing and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged in an five-count information with two counts of first degree residential burglary in violation of Penal Code section 459,^[1] with a special allegation that the second burglary was committed while armed with a firearm in violation of section 12022, subdivision (a)(1), one count of giving false information to a police officer in violation of section 148.9, subdivision (a), one count of having contraband in a juvenile facility in violation of Welfare and Institutions Code section 871.5, subdivision (a), and one count of battery on an officer in violation of section 243, subdivision (b).

Defendant burglarized the same home in Eureka, California on two occasions: November 20 and 26, 2016. On November 20, defendant broke a skylight in the bathroom and stole jewelry, a laptop computer, and an urn with the residents’ daughter’s ashes. On November 26, defendant again broke into the same home by smashing a sliding glass door. The officers found him hiding in a clothes dryer in the garage. Defendant was wearing some of the jewelry stolen in the prior burglary.

When an officer took defendant into custody he identified himself as “Nathanial Snider.” During a search of defendant’s car, officers found ammunition and the homeowner found a revolver in a trash can in the home. Defendant was also seen holding the firearm in the home’s surveillance camera footage.

While in custody, defendant approached a juvenile corrections officer and attempted to strike him. After the officer knocked defendant to the ground to try to subdue him, defendant put his arm around the officer’s neck and struck him in the head with his knee. Another juvenile began punching the officer in the back. A second officer had to intervene and attempted to pull defendant’s arm off the first officer’s neck.

While defendant was in the juvenile correctional facility, officers found marijuana in defendant’s room concealed in a deodorant container wrapped in the foil lid of a yogurt container. A corrections officer questioned defendant at the time and defendant appeared to be under the influence of marijuana.

Defendant pled guilty pursuant to a plea agreement. The parties stipulated that the preliminary hearing transcript could provide the factual basis for the plea. Defendant entered a no contest plea to count two, the residential burglary on November 26, 2016, as well as the special allegation under section 12022, subdivision (a)(1). The People moved to dismiss the remaining counts in the information with a Harvey reservation.[2]

The probation report outlined defendant’s lengthy juvenile record and child welfare system involvement. Defendant’s father spent most of his young life in custody and his mother is a heroin addict. Defendant had prior juvenile convictions for vandalism, burglary, petty theft, auto theft, and battery. During his custody in juvenile hall, he was involved in 10 incidents from November 26, 2017, to the date of sentencing on January 9, 2018. Most of the incidents involved assaults on other detainees.

Defendant has smoked marijuana daily since at least age 12 and he has smoked methamphetamine daily since age 13. He first started abusing Xanax at age 15. He participated in an in-custody substance abuse treatment program for one month but absconded from treatment as soon as he was released.

The burglary victims both submitted statements explaining their financial losses due to the items that were stolen and the damage to their home, but also the emotional toll of the burglaries. According to the victim, not only did defendant steal their daughter’s ashes and irreplaceable family jewelry, but he ejaculated on their dead daughter’s bed. Defendant also urinated on the floor of the home.

The probation report stated defendant was not eligible for probation due to his conviction under section 459. Defendant has not accepted responsibility for his actions, other than stating that he was high on Xanax. He has expressed no remorse or sympathy for the victims. Defendant was assessed with a high risk to reoffend. He had two prior felony adjudications and six prior misdemeanor adjudications. The probation report recommended a sentence of six years in custody on count two and an additional one-year term for the enhancement under section 12022 for a total consecutive term of seven years.

At the sentencing hearing, defendant was represented by counsel. The court stated it had considered the probation report, statements from the victims, a statement from defendant, and the sentencing memoranda. The court stated its tentative decision was to sentence defendant to a consecutive term of seven years in custody. Defendant was presumptively ineligible for probation.

Defense counsel argued probation failed to consider whether this case presented unusual circumstances under California Rules of Court, rule 4.413[3] allowing for a sentence of probation. Counsel stated this was an unusual case given defendant’s age, his upbringing, and prior trauma. Counsel argued that defendant had, in fact, expressed remorse for his actions and the impact on the victims. Counsel read a statement from defendant’s juvenile hall clinician who provided him with weekly counseling where she stated defendant could receive weekly trauma-informed cognitive behavioral therapy, family therapy, case management and wrap around services if he was granted probation. The counselor stated defendant had shown progress in his therapy and expressed remorse. Defendant was not a “fully formed adult” and his failures are the failures of a child.

Defense counsel argued the burglaries did not demonstrate criminal sophistication and, although defendant had failed on probation previously, he could benefit from a treatment program.

The victim gave a statement arguing defendant broke into his home, not once but twice. The second time he was carrying a loaded gun. His wife was so traumatized, they are moving out of their home and out of the county.

The prosecutor argued that defendant had previous convictions for theft and for carrying a firearm. Defendant has never succeeded on probation.

He has a significant juvenile record and he has behaved poorly in custody.

The trial court remarked this was a difficult case to make an appropriate determination. The court found it was not an unusual case under California Rules of Court, rule 4.413 and the court did not consider it an appropriate case for a 90-day diagnostic evaluation. The court found there were no factors in mitigation and several in aggravation. The crime was carried out with planning and sophistication and involved taking items of monetary value. Defendant was on probation when the crime was committed. The court imposed the aggravated term of six years on count two with an additional one-year term for the firearm enhancement for a consecutive sentence of seven years. At defense counsel’s request, the court ordered restitution at an amount to be determined at a later hearing.

DISCUSSION

1. No Issues Under Wende

Neither defendant nor defendant’s counsel has identified any issue for our review on appeal. Upon our own independent review of the record, we agree no actual issue exists. (People v. Wende, supra, 25 Cal.3d 436; Anders v. California (1967) 386 U.S. 738, 744.) Defendant pled guilty, and the notice of appeal indicates he is appealing his sentence or other matters that do not affect the plea's validity, so our review is limited to post-plea matters. (Cal. Rules of Court, rule 8.304(b).) We find no meritorious sentencing issues requiring reversal of the judgment. Defendant was represented by counsel throughout the proceedings, and the record does not reveal any deficiencies in counsel's representation. While we agree with the trial court this is difficult case and the resulting sentence was lengthy, there are no meritorious issues to be argued on direct appeal.

DISPOSITION

The judgment is affirmed.

_________________________

LEE, J.^*

We concur:

_________________________

STREETER, Acting P. J.

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TUCHER, J.

^* Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

A153456, People v. Friedland