THE PEOPLE v. Phillip C. Peatry, Defendant and Appellant. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Phillip C. Peatry appeals from the judgment entered following his plea of no contest to first degree burglary (Pen.Code, § 459) ¹ and his admission that he had suffered two prior felony convictions for which he served prison terms (§ 667.5, subd. (b)).  The trial court sentenced Peatry to eight years in prison.   We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.²

At approximately 8:00 a.m. on November 7, 2009, Rowland Santos and his wife left their apartment located at 2706 Graham Avenue in Redondo Beach.   Santos and his wife returned to their apartment at approximately 4:10 that afternoon to find a plastic bag at the bottom of the stairway.   Mr. and Mrs. Santos had not left the bag there that morning and it did not belong to them.   As he climbed up the stairs to the apartment, Mr. Santos noticed a black backpack on the patio.   The backpack, too, did not belong to either Mr. or Mrs. Santos.   Finally, Mr. Santos noticed that the sliding portion of a window was “completely [gone].”

The apartment was still locked and Mr. Santos used his key to enter through the front door.   Inside, he noted that the bedroom door, which he and his wife typically left open, was closed.   Mr. Santos yelled, “ ‘Is anyone here [?]’  “ Although no one responded, after approximately 15 or 20 seconds, Peatry came out of the bedroom.   He approached Mr. Santos and said, “ ‘I ran the guy out of here.   I saw you getting burglarized.   I'm here––I saw him run out, and I'm here to help you.’  “ Mr. Santos, however, who “was in a bit of [a] shock,” questioned Peatry, asking him what he was doing there and telling him, “ ‘Okay, well, if you are here to help me and you saw this guy, let's go ahead and I need you to help me out.   Let's wait for the police to come so you can give an identification and help me catch this guy that supposedly you ran out of here.’  “ At that point, Mrs. Santos, who was in the kitchen, called 911.

Mr. Santos told Peatry his name and, in return, Peatry told Mr. Santos that his name was “ ‘Will Smith.’  “ Peatry gave to Mr. Santos a phone number, which Mr. Santos wrote down on an envelope.

When police officers arrived, they took Peatry into custody.   Mr. Santos then took an informal inventory and discovered that his wife's Blackberry cellular phone was missing.   In addition, a number of items were out of place.   The Santos's video camera and other “technology items” which they usually kept in the living room were in a bag in the bedroom.   Their lap-top computer had been placed by the door way and Mrs. Santos's jewelry box had been removed from the bedroom and put in the living room.

Neither Mr. nor Mrs. Santos had ever met Peatry and they had not given him permission to enter their apartment.

City of Redondo Beach Police Officer Catherine Saade responded to Mrs. Santos's 911 call indicating that there was a “burglary in progress.”   When Saade arrived at the apartment, she took Peatry out to the patio and searched him.   The search revealed what the officer considered to be burglary tools.   In his shorts pocket, Peatry had a wrench, wire cutters and a knife, tools “commonly used to either cut screens or remove glass, ․ or pry doors open.”   Saade also recovered a glass pipe commonly used to smoke crack cocaine.

2. Procedural history.

Following a preliminary hearing held on December 14, 2009, Peatry, acting in propria persona, made a motion to dismiss the charges against him for insufficiency of the evidence.   The trial court denied the motion indicating that there had been sufficient evidence to show that Peatry had committed the following offenses:  first degree burglary in violation of section 459, possession of burglary instruments or tools in violation of section 466 and possession of a pipe used for smoking a controlled substance in violation of Health and Safety Code section 11364, subdivision (a).

An information was filed on December 28, 2009.   In count 1 it was alleged that Peatry committed first degree burglary of an inhabited dwelling with a person other than an accomplice present, a felony in violation of section 459.   It was further alleged that the offense was a “violent felony” within the meaning of section 667.5, subdivision (c)(21) and a serious felony within the meaning of section 1192.7, subdivision (c).  It was also alleged as to count 1 that Peatry suffered 13 prior convictions for which he served prison terms within the meaning of section 667.5, subdivision (b).  Count 2 alleged the crime of possession of burglar's tools, a misdemeanor in violation of section 466 and count 3 alleged the misdemeanor of possession of a device used for smoking a controlled substance in violation of Health and Safety Code section 11364, subdivision (a).

At a hearing held on December 28, 2009, Peatry pleaded not guilty to each of the three counts and denied the special allegations.   At those same proceedings, he decided to give up his in propria persona status and counsel was appointed to represent him.

In the beginning of February 2010, defense counsel requested that Peatry be evaluated by a Dr. Parham.   After hearing from Dr. Parham, on February 8, 2010 the trial court ordered criminal proceedings adjourned.   The court declared “a doubt as to [Peatry's] mental competence pursuant to ․ section 1368.   Counsel for [Peatry] concur[red] with the court's decision.”   Two doctors, Joel P. Leifer and Kaushal K. Sharma, were then appointed to examine Peatry pursuant to Evidence Code section 730.   After evaluating Peatry, the doctors were to report back to the trial court.

At a hearing held on February 19, 2010, the People requested that the court appoint Dr. Ronald Markman to evaluate Peatry.   On February 26, 2010, the trial court issued a “ ‘letter for psychiatric appointment’ “ of Dr. Markman, a copy of which was provided to the district attorney.

On March 30, 2010, the matter was called for a section 1368 hearing regarding Peatry's mental competence.   After reading Dr. Markman's report, the trial court continued proceedings to May 13, 2010.   At those proceedings, the trial court noted that “criminal proceedings had been suspended pending a 1368 evaluation.”   The trial court continued:  “The record should reflect that I've read and considered the reports of the two psychologists who were appointed in this matter.   And they are Dr. Joel [Leifer] who took care of the report dated April 17th, 2010, and Dr. Ronald Markman who prepared a report dated April 21st, 2010.”   The court then asked counsel if “both sides” would agree that the trial court could “review the reports of the respective psychiatrists in this matter,” and “stipulate that they qualify as experts in [their] respective fields of study;  and that they [would] testif[y] consistent[ly] with the information contained within the reports?”   Both counsel responded, “So stipulated.”

When the trial court asked counsel if either one wished to be heard, defense counsel simply submitted the matter.   The prosecutor, however, commented that both psychiatrists “seem[ed] to indicate that [Peatry] appear[ed] to be fainting [sic ] and malingering.   Their conclusions [were] that he's competent to stand trial.”   The trial court found that, for purposes of “this matter, ․ [Peatry was] competent.”   The court then reinstated the criminal proceedings.

The court indicated that it was its understanding that the parties had come to a “resolution” in the case.   The district attorney's office had offered Peatry a sentence of eight years in prison in exchange for his plea of guilty or no contest to the residential burglary and admission of two section 667.5, subdivision (b) priors.   The prosecution would then dismiss the 11 remaining section 667.5, subdivision (b) priors and the two misdemeanors.

After Peatry waived his right to a jury or court trial, his right to confront and cross-examine the witnesses against him, his right to put on an affirmative defense and his privilege against self-incrimination, the trial court asked him if he had any additional questions.   Peatry responded, “I just don't know why they're giving me so much time for something I didn't do.”   The trial court then addressed Peatry and stated:  “Well, Mr. Peatry, if what you're saying is that you're accepting the plea because you feel it's in your best interest to do so and you want to enter a no-contest plea, that's fine.  [¶] If you're saying that you don't want to enter a plea of either guilty or no contest and you want to go forward with your trial, that's fine too.  [¶] The district attorney's offer of 8 years is the offer that––my understanding is that your attorney and you have discussed;  and that you wish to accept as opposed to potentially going forward to trial in which case if you are convicted based on the number of one-year priors that you have alleged against you, your potential maximum exposure is somewhere in the neighborhood of 16 years.”   The district attorney then added:  “Actually, it's more than that, Your Honor, because if you double the high-term on the residential burglary for 12, I think I have 10 years in priors, so 22.”   Peatry then decided that he wished to accept the offer of eight years in prison and he pleaded no contest to the allegation he violated “section 459, first degree burglary with a person present, a serious and a violent felony under California law,” and admitted having been convicted of two felonies for which he served prison terms within the meaning of section 667.5, subdivision (b).

After accepting “the waiver of rights and the entry of the plea” and finding that they were “knowingly, intelligently and voluntarily made,” the trial court asked whether there was any legal cause why sentence should not be imposed.   When both counsel indicated that there was not, the trial court chose to make a few comments before sentencing Peatry.   The court stated:  “For the record, I've previously reviewed the pre-plea report and I've reviewed the reports of the doctors that were appointed in [the] matter.  [¶] It appears to the court the defendant does suffer from certain mental health issues[.]  However, I am satisfied that he is competent [and] that he has a knowing, intelligent understanding of the rights, that he's voluntarily waiving and giving up․”

On May 13, 2010, the trial court sentenced Peatry to the high base term of six years in state prison for “the violation of ․ section 459, first degree burglary with a person present.”   For the section 667.5 allegations, the trial court imposed two 1–year enhancements to run consecutively to each other and the term imposed for the burglary, for a total term of eight years in state prison.   Peatry was awarded credit for 212 days actually served and 31 days of good time/work time, for a total of 243 days.

Peatry was ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)), a stayed $200 parole revocation restitution fine (§ 1202.45), a $30 court security assessment (§ 1465.8, subd. (a)(1)), a $30 criminal conviction assessment (Gov.Code, § 70373), and “actual restitution as determined by the officer, rather than reimbursement.” ³

In response to the prosecutor's motion, the trial court dismissed counts 2 and 3 and struck the remaining section 667.5 allegations “in the interest of justice.”

Peatry filed a timely notice of appeal on July 2, 2010.

This court appointed counsel to represent Peatry on appeal on October 26, 2010.

CONTENTIONS

After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.   By notice filed January 24, 2011, the clerk of this court advised Peatry to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider.   No response has been received to date.

REVIEW ON APPEAL

We have examined the entire record and are satisfied counsel has complied fully with counsel's responsibilities.  (Smith v. Robbins (2000) 528 U.S. 259, 278–284;  People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2. The facts have been taken from the transcript of the preliminary hearing..  FN2. The facts have been taken from the transcript of the preliminary hearing.

FN3. The trial court reserved jurisdiction over the issue of restitution..  FN3. The trial court reserved jurisdiction over the issue of restitution.

KLEIN, P. J. ALDRICH, J.