People v. Leary CA1/3

Filed 10/22/15 P. v. Leary CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A143726 v. DYLAN ROBERT LEARY, (Napa County Super. Ct. No. CR170915) Defendant and Appellant.

Defendant Dylan Robert Leary was sentenced to serve four years four months in state prison after pleading no contest to arson and burglary charges. His sole claim on appeal is that an order directing him to stay away from the victims and their property constitutes an unauthorized sentence and must be reversed. We shall strike the challenged order but otherwise affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND In May 2014, Cal Fire personnel responded to a fire early in the morning at a vacation property in Napa owned by Matthew and Karla Davis.1 The main residence on the property was destroyed in the fire. An arson investigator believed the fire was deliberately set. Mr. Davis reported that various items had been taken from the property, including two televisions sets, a mountain bike, and tools belonging to a contractor. After the fire had been extinguished, Mrs. Davis called 911 in the afternoon to report

1 Because the conviction resulted from a plea, the factual background is derived from the probation report.

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three suspicious persons on the property. One of the suspicious persons was defendant, who was holding a sword when he came out from behind a guest house on the property. Defendant and the other two individuals left in a vehicle after being confronted. Mrs. Davis reported the vehicle’s license plate to the police dispatcher. A sheriff’s deputy contacted the vehicle’s owner, who claimed he had gone to the Davis property after defendant called him and asked for a ride home. The day after the fire, detectives conducted a probation search of defendant’s home, where they found various items that matched the description of property taken from the Davis’s vacation home. In an interview with the detectives, defendant admitted that he had burglarized the Davis property with two other individuals, Joseph Dewitt and Jessica Jaeger. Defendant stated that he had gone to the Davis property on three separate occasions, including one time after the fire. According to defendant, he returned to the property after the burglary because he read that the house had burned to the ground and wanted to see it. He claimed he had nothing to do with the fire. Jaeger reported that she heard an alarm sounding as the burglars left the Davis property. Dewitt told her he lit a hallway closet on fire as they were leaving in order to get rid of any fingerprints. The Napa County District Attorney filed a five-count criminal complaint charging defendant with arson of an inhabited structure (Pen. Code,2 § 451, subd. (b)), three counts of first degree residential burglary (§ 459), and conspiracy to commit arson and burglary (§ 182, subd. (a)(1)). Defendant pleaded no contest to the arson count and to one of the burglary counts. In exchange for the plea, the prosecutor agreed to dismiss the remaining charges. Pursuant to the plea, the court sentenced defendant to serve four years four months in state prison, composed of the low term of three years for arson plus a consecutive term of one year four months, representing one-third of the four-year middle term for burglary. At the sentencing hearing, Mrs. Davis spoke about her fear after the arson and burglary of her home and the need to take measures to make sure defendant and his