P. v. Ybarra

Filed 7/21/08 P. v. Ybarra 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Donald E. Shaver, Judge.

Roberta L. Franklin, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

PROCEEDINGS

On April 25, 2007, an information was filed charging appellant, Dennis Ybarra, with two counts of first degree burglary (Pen. Code,  459).^[1] At the conclusion of a jury trial on August 13, 2007, Ybarra was found guilty of both counts. On September 10, 2007, Ybarra was sentenced to prison for the midterm of four years on count one and to a concurrent term of four years on count two. The court imposed various fines and awarded Ybarra custody credits of 258 days.

Ybarras 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 Ybarra was advised he could file his own brief with this court. By letter on March 3, 2008, we invited Ybarra to submit additional briefing. To date, he has not done so.

FACTS

On March 23, 2007, at 1:41 p.m., Deputy Noel Vento of the Stanislaus County Sheriffs Department was dispatched to 1715 Seattle Street in Modesto to investigate a burglary. Vento contacted Francisca Castrejon and her brother-in-law, Mr. Clemente, who lived in a small apartment behind Castrejon. The second residence was located at 1717 Seattle Street. Castrejons front door was open and a window by the back door was broken. The residence was ransacked. There was a tire wrench near the point of entrance, which Vento believed to be the rear window.

The front door to Clementes residence had been smashed open. At the rear of the yard, Vento noticed a gate was slightly open. Both Castrejon and Clemente were missing property. Near the garage of Castrejons residence Vento found a shoe print in the yard. No resident of either property had a matching shoe pattern. Following the shoe print, Vento went into the alley and headed south into the rear yard of Ybarras home on Denver Street.

Ybarras mother told Vento she saw her son coming in from the alley carrying a computer. Ybarra told his mother he bought a computer and a television. Ybarras mother gave Vento consent to search her home. Vento and Deputy Humble conducted the search. Ybarra was in a bedroom. Vento told Ybarra why he was inside the home. Ybarra consented to a search of his room.

Humble showed Vento a pair of tennis shoes behind Mrs. Ybarras bedroom door. The pattern on the bottom of the shoes was the same similar shoe pattern Vento followed through the alley. The deputies found a television, a VCR, a computer, and computer speakers in the home. The computer speakers and VCR were not connected. The VCR was on Ybarras bed. The computer was also not plugged in. The victims identified their property.

The tennis shoes were accepted into evidence. The shoeprints found by Ybarras home and the gate of the victims home were unique because of a swirl, overlay pattern and a perfectly round circle with the letter P in the middle. Humble testified that the pattern on the tennis shoes was original and matched the pattern found in the dirt. A compact disc recording and transcript of Ybarras statement to investigators after his arrest were also admitted into evidence. Ybarra told investigators that he purchased the property they found in his home with money his mother gave him.

Ybarras mother denied telling the officer she saw her son carrying the computer. Ybarras mother explained that her son told her he purchased the property.^[2]

After independent review of the record, we have concluded no reasonably arguable legal or factual argument exists.

DISPOSITION

The judgment is affirmed.

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

^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] The trial court gave the jury complete instructions on burglary.