P. v. Colombero
Filed 11/7/13
P. v. Colombero 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NOT TO BE PUBLISHED IN THE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opinion has not been certified for publication or ordered published for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.
JOHN FREDERICK COLOMBERO,
Defendant and Appellant.
F065688
(Super. Ct. No. F12902400)
OPINION
THE COURT
APPEAL from a judgment of the
Superior Court of
County. John F. Vogt, Judge.
Alex Coolman, under appointment by
the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney
General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
After a
bench trial, the court convicted appellant, John Frederick Colombero, of
attempted second degree robbery (Pen.
Code, §§ 664, 211).
title="">[1] In a separate proceeding, the court found
true six prior prison term enhancements (§ 667.5, subd. (b)) and allegations
that Colombero had four prior convictions within the meaning of the three strikes
law (§ 667, subds. (b)-(i)).
Following independent review pursuant to People v. Wende (1979) 25
Cal.3d 436, we affirm.
FACTUAL AND PROCEDURAL HISTORY
DeAnna Estrada worked as an examiner for
the Department of Motor Vehicles (DMV) in Fresno. On April 4, 2012, at 4:00 p.m., she was
giving a driving test to Stephanie Soto in the DMV’s parking lot. Estrada was seated in the front passenger’s
seat and Soto in the driver’s seat with the window down when Colombero
approached Soto’s door with a beer in his hand and stated in a demanding manner,
“Give me some money.†Estrada heard Soto
tell Colombero she did not have any money.
Colombero then stooped down, looked at Estrada and said in an agitated
tone, “Hey, white bitch, I know you have money.†“I have a blade and I’ll use it.†Estrada told Colombero they did not have any money. Colombero stepped back a few feet, put his right
hand in his front pants pocket, and fumbled through it as he cursed and mumbled. Colombero again stated, “I have a blade and
if you don’t give me some money I will use it.â€
At Estrada’s direction, Soto put her window up and locked her door. Estrada then ran into the DMV office to call
security. However, unable to find a
security officer, she instead told her manager to call 911 because a homeless
person was threatening her and Soto with a knife. Estrada went back outside and saw Colombero
walking away and Soto talking to her father.
California
Highway Patrol Officer Brett Boss responded to the DMV and was provided a
description of Colombero by Estrada. Boss
located Colombero, who fit the description provided by Estrada, at a trailer
park. Colombero appeared to be slightly
agitated as Boss asked him if he had been in the DMV parking lot. Colombero replied that he had been on the
east side of the parking lot but denied speaking with any women in a car. After noticing a bulge in one of Colombero’s
pockets, Boss performed a pat search and found a combination wine opener and
knife in Colombero’s right front pants pocket.
Officer Boss took Estrada to the trailer park
where she identified Colombero as the man who attempted to rob her and Soto.
On July 26,
2012, the district attorney filed a first amended information charging
Colombero with attempted robbery. The information alleged four serious felony
enhancements, six prior prison term enhancements, and that Colombero had four
prior convictions within the meaning of the three strikes law.
On July 30,
2012, the court found Colombero guilty of attempted robbery and all enhancements
and prior conviction allegations true.
On August
28, 2012, the court sentenced Colombero to an aggregate indeterminate term of 41
years to life consisting of an indeterminate term of 25 years to life on the
attempted robbery conviction, three five-year serious felony enhancements, and
a one-year prior prison term enhancement.
The court also ordered Colombero to pay a $9,840 restitution fine and a
parole revocation fine in the same amount.
The court awarded Colombero 294 days of presentence
actual credit and 147 days of conduct credit.
Colombero’s appellate counsel has
filed a brief which summarizes the facts, with citations to the record, raises
no issues, and asks this court to independently review the record. (People
v. Wende, supra, 25 Cal.3d 436.) However,
in a letter filed on March 18, 2013, Colombero poses several questions that do
not raise any legal issues. He also questions
whether his alleged conduct of asking for money while telling the victims that
he had a “blade†and would use it constituted an attempted robbery. It did.
“‘Robbery
is the felonious taking of personal property in the possession of another, from
his person or immediate presence, and against his will, accomplished by means
of force or fear.’ [Citation.]†(People
v. Lindberg (2008) 45 Cal.4th 1, 24.)
“An attempted robbery
requires a specific intent to commit robbery
and a direct, ineffectual act (beyond mere preparation) toward its
commission. [Citations.] Under general attempt
principles, commission of an element of the
crime is not necessary.… As such,
neither a completed theft [citation] nor a completed assault [citation], is
required for attempted robbery. [Citations.]â€
(People v. Medina (2007) 41
Cal.4th 685, 694-695.)
Colombero took several direct,
albeit ineffectual, steps toward committing a robbery when he approached the
window of the victims’ car, demanded money, and threatened them with a “bladeâ€
as he fumbled through his pants pocket.
Further, it can reasonably be inferred from these circumstances that
Colombero committed the above acts because he had the specific intent to take
money from the victims by means of force against their will, i.e., that he had
the specific intent to commit a robbery.
Thus, the conduct attributed to Colombero by the victims clearly
constituted an attempted robbery.
Further, following
an independent review of the record, we find that no reasonably
DISPOSITION
The
judgment is affirmed.
Cornell, Acting P.J., Kane, J. and Franson, J.
further statutory references are to the Penal Code.
