P. v. Leiva

P. v. Leiva

Filed 9/10/08 P. v. Leiva CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. MONIQUE LEIVA, Defendant and Appellant.

F054198 (Super. Ct. No. BF119664A) OPINION

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. James M. Stuart, Judge.

Paul R. Kraus, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

PROCEEDINGS

On July 19, 2007, the prosecutor filed an information charging appellant, Monique Leiva, with residential burglary (Pen. Code,  460, subd. (a), count one).^[1] The information alleged one prior prison term enhancement ( 667.5, subd. (b)) and that the offense was a serious felony ( 1192.7, subd. (c)(18)) disqualifying Leiva from probation ( 462, subd. (a)). At the conclusion of a jury trial, Leiva was found guilty of the burglary allegation.

On October 31, 2007, the court sentenced Leiva to the midterm of four years and it struck the prior prison term enhancement in the interests of justice. The court imposed a $200 restitution fine and granted applicable custody credits.

Leivas appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Leiva was advised she could file her own brief with this court. By letter on May 21, 2008, we invited Leiva to submit additional briefing. To date, she has not done so.

FACTS

Early on the morning of June 24, 2007, Samuel Christensen was awakened by the sound of a wooden gate being dragged across cement. Christensen was in his bedroom. The gate was next door, five feet from Christensens window, in a home occupied by Marisa Ratliff. Christensen heard individuals talking. One of them said they could not take everything.

Christensen walked to his front door where he saw two people walking around a bush. One of the people said good morning to Christensen. The two people proceeded to walk away. Christensen identified Leiva as one of the two people he saw that morning. Leiva was carrying a big bag in each hand. Leivas partner was also carrying a big bag.

Christensen went into his neighbors yard and saw the gate open. When he walked into the back, Christensen saw the doors pried open. Christensen told his wife to call the police. Christensen followed Leiva and her partner in his pickup truck, encountering them about a block and a half from where he last saw them. With his window down, Christensen told the two to stop. Leiva and her partner started dropping bags and within 10 feet, they had dropped all of their bags and started running away.

Christensens daughter, Jamie, was following him. Jamie followed Leivas partner. Christensen signaled a police car that had just arrived and he talked to the officer. Christensen went back and retrieved the bags, which contained prescription medication, CDs, blank checks, gift cards from department stores, and other items including clothing.

Jamie followed her father in a car. She saw Leiva several blocks away from their home walking with the other woman involved in the crime. Jamie saw Leiva begin to run and noticed three or four bags on the side of the road.

Officer Jared Diederich, who was dispatched to investigate the reported burglary, met Christensen who gave Diederich three bags. Ratliff identified the items in the three bags as hers. Diederich found every room in the house had been rummaged through. There was paperwork all over the home. Drawers were pulled open and items knocked over.

Christensen directed Diederich to an apartment complex between Forest and Cherry Streets. Diederich found another bag behind the complex. Although there was nothing in the three bags retrieved by Christensen that could have been used to open the victims door, there were several items in the fourth bag that possibly could have been used to pry open the door. The items identified by Ratliff in the fourth bag that did not belong to her included a folding knife, a kitchen butter knife, a hardware style file, a pair of pliers, a screwdriver, and a long-sleeved hooded shirt. There was mail in the fourth bag that belonged to Ratliff.

Leiva waived her Miranda^[2]rights and told another investigating officer that she did not go into the house and did not carry any bags. No burglary tools or gloves were found on Leiva. The parties stipulated that no fingerprints from the victims home matched Leivas fingerprints.

After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.

DISPOSITION

The judgment is affirmed.

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^*Before Gomes, Acting P.J., Dawson, J., and Kane, J.

^[1] Unless otherwise noted, all statutory references are to the Penal Code.

^[2]Mirandav. Arizona (1966) 384 U.S. 436.