Opinion
E052230
08-02-2011
THE PEOPLE, Plaintiff and Respondent, v. DONALD LEE CONDON, Defendant and Appellant.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. FWV802123)
OPINION
APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson, Judge. Affirmed.
Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
An information charged defendant and appellant Donald Lee Condon (defendant) with one count of first degree burglary under Penal Code section 459. The information also alleged that defendant previously had been convicted of two serious or violent felonies within the meaning of sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d), and that defendant had suffered a prior serious felony conviction within the meaning of section 667, subdivision (a). The information further alleged that defendant had suffered three prior felony convictions for which he had served prison terms and failed to remain free of custody for a period of five years within the meaning of section 667.5, subdivision (b).
All statutory references are to the Penal Code unless otherwise specified.
Defendant filed a motion to suppress evidence under section 1538.5. He also filed a motion to suppress identification. After the trial court held a hearing on defendant's motions, the court denied both motions to suppress. Thereafter, defendant entered a plea of guilty to one count of residential burglary. Defendant also admitted one of the prior serious or violent felony convictions within the meaning of sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d). Moreover, defendant admitted two of the three prior prison term enhancement allegations under section 667.5, subdivision (b), and the prior serious felony enhancement under section 667, subdivision (a).
Pursuant to the terms of the plea agreement, defendant was sentenced to an aggregate term of 19 years as follows: (1) six years on the burglary count, doubled to 12 years under the three strikes law; (2) five years for the section 667, subdivision (a) enhancement; and (3) one year each for the two section 667.5, subdivision (b) enhancements.
STATEMENT OF FACTS
At approximately 4:30 a.m. on July 31, 2008, James Lipis (the victim) was lying in bed watching a movie in his second story bedroom in Upland. As he was doing so, the victim saw that the screen to the window was being removed and a hand was coming through the window. The victim turned on the light, and when he went back to the window, the blinds were up. The victim saw defendant's face. The victim has never seen defendant before and had not given him permission to enter the house. The victim rushed toward the window. Defendant backed away and jumped down a wall, into a neighbor's yard, and ran off.
Sergeant Barry Belt with the Upland Police Department was on duty during the early morning of July 31, 2008; he responded to a burglary call in progress in the area of 13th Street and Mountain Avenue. In searching the backyard where the victim stated that defendant had jumped, Sergeant Belt saw a black shirt or sweater up against a sliding glass door. The victim had said that the intruder had been wearing a black shirt or jacket.
Sergeant Belt went around to the front of the residence where he had seen the shirt in the backyard. He found that the front window was broken out and the screen was on the ground and bent, as if it had been forced out of the frame. When Sergeant Belt and other officers called inside, they received no response. The sergeant and two other officers then entered the residence. Eventually, they heard a response from upstairs.
Initially, Sergeant Belt and the officers made contact with two males and a female. One of them told the officers that there were two other people still upstairs, a man and a woman. As the officers continued to call, defendant came down the stairs. Upon initial contact, defendant appeared nervous. He was wearing jeans but was shirtless. Sergeant Belt believed that defendant met the description of the suspect given by the victim.
Sergeant Belt asked defendant to step to the front door. As defendant did so, the sergeant noticed that defendant had fresh scrapes on the front of his abdomen. Sergeant Belt also observed that defendant had a syringe sticking out of his pants pocket. Sergeant Belt directed defendant to turn around. The sergeant removed the syringe and placed defendant in handcuffs. Sergeant Belt saw that there was a brown liquid residue on the syringe similar to what he had seen before with heroin or speed users.
At first, defendant identified himself as Daniel Edwards. After Sergeant Belt pointed to several prison-related tattoos on defendant's body, defendant ultimately gave his true name.
Some of the occupants of the residence where defendant was found stated that defendant was supposed to be there; others stated that defendant did not belong there.
The victim initially identified a different young man as the intruder. The victim subsequently identified defendant as the intruder.
ANALYSIS
After defendant appealed, and upon his request, 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 case, a summary of the facts, and potential arguable issues, and requesting this court to undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, but he has not done so. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKinster
J.
We concur: Hollenhorst
Acting P.J.
Codrington
J.