People v. Palomares CA2/8

Filed 12/23/14 P. v. Palomares CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B255597

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA419228) v.

ALFONSO C. PALOMARES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, David V. Herriford, Judge. Affirmed.

Mae G. Alberto, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

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Alfonso C. Palomares appeals from a judgment following his conviction for burglary. Pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), appellant’s counsel filed an opening brief requesting that this court review the record and determine whether any arguable issues exist on appeal. We have reviewed the entire record and find no arguable issue. We affirm. PROCEDURAL HISTORY Appellant was charged with burglary. (Pen. Code, § 459.) A prior conviction for murder was alleged as a “strike” (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and as a prior prison term enhancement (Pen. Code, § 667.5, subd. (c), 1192.7). Prior to trial, appellant moved to exclude his prior conviction. The trial court denied the motion but held if appellant testified any reference to the conviction would be sanitized not to refer to murder or any “moral turpitude” language. Appellant also moved to exclude any reference to a screwdriver, pliers, and sandpaper found on him at the time of his arrest. The People planned to introduce evidence that those items were burglary tools, which showed appellant’s intent, even though he had not used those tools in the theft that formed the basis of the burglary charge. The court denied appellant’s motion. Appellant further objected to testimony from Sheriff’s Deputy Ricardo Villegas that the items found on appellant were burglary tools. The court found Sheriff’s Deputy Villegas’s seven years of experience was sufficient foundation to support his opinion, and the testimony was relevant to appellant’s intent and not unduly prejudicial. A jury found appellant guilty. For sentencing, appellant waived trial on his strike prior and stipulated to the strike, which the court found true. The court denied appellant’s motion to strike his prior conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and sentenced him to the midterm of two years in state prison, which was doubled to four years in light of his strike. (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) The court ordered appellant to pay various fines and fees and gave him 249 days of presentence credits. Appellant timely appealed.