People v. Bengston CA1/3

Filed 12/17/15 P. v. Bengston CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A144826 v. BRET ALCOTT BENGSTON, (Mendocino County Super. Ct. No. SCUKCR1477300) Defendant and Appellant.

Bret Alcott Bengston appeals from a judgment entered after his conviction of first- degree burglary of a dwelling (Pen. Code, §§ 459, 460 1), and the imposition of a mitigated term of two years incarceration in state prison. Bengston’s appellate counsel has filed a brief asking us to independently review the record under People v. Wende (1979) 25 Cal.3d 436 to determine whether any arguable issues are presented. As required under People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note that appellate counsel has informed us that she has written to Bengston at his last known address advising him of his right to file a supplemental brief and Bengston has not filed such a brief. Bengston was charged in an information with one count of first-degree burglary, based on an incident that occurred April 14, 2014, in which he allegedly entered an inhabited home with the intent to commit a larceny or other felony. Bengston,

1 All further unspecified statutory references are to the Penal Code.

1

represented by counsel from the public defender’s office, pleaded not guilty to the charge. Before trial commenced, defense counsel made several in limine motions, resulting in favorable rulings limiting the admission of certain evidence. At trial, the evidence included the testimony of the burglary victim, the victim’s mother, and several law enforcement officers, as well as photographs of the burglarized residence. The People presented evidence that before the burglary, Bengston had called the victim and asked for the return of some of his property that was at the victim’s residence. The victim told him that she was not at home, she would be gone for the next several days, and he would be allowed to get his property when the victim returned but he was not to go to the victim’s residence in the meantime. The next day, the victim’s mother saw Bengston, carrying a full backpack, and trespassing on property near the victim’s residence. Bengston told the victim’s mother that the victim had given him permission to be on the property, but the victim’s mother said she owned the property and Bengston complied with a request that he leave the property. When the victim returned to her residence, several days later, she found that several of her items had been taken, and that certain items allegedly belonging to Bengston were at the residence. Bengston was found in possession of the victim’s credit/debit card, which had not been cancelled but was connected to a closed bank account; the police recovered no other stolen items from Bengston. A properly instructed jury found Bengston guilty of first-degree burglary. At the original sentencing hearing on September 12, 2014, the court found Bengston was “presumptively ineligible for probation,” because the burglary conviction was a serious felony and a strike offense, and the court was not aware of any circumstances that would permit the grant of probation. In so ruling, the court considered both the circumstances of the current incident, as well as Bengston’s extensive criminal history including numerous prior misdemeanor and felony convictions, that Bengston had been on probation or parole continuously since the middle or late 1990’s, and he had violated either probation or parole terms on numerous occasions. As to the term of incarceration to be imposed, the court heard argument from counsel, Bengston, and the