Filed 4/24/14 P. v. Dambra CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G048667
v. (Super. Ct. No. 12NF1885)
KELLY RONALD DAMBRA, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Gary S. Paer, Judge. Affirmed.
John L. Dodd, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
* * *
INTRODUCTION
Defendant Kelly Ronald Dambra was convicted of two counts of second
degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), and admitted he had suffered a
prior conviction (id., §§ 667, subds. (d) & (e)(1), 1170.12, subds. (b) & (c)(1), & 667,
subd. (a)(1)). The trial court sentenced defendant to a term of seven years in prison, and
awarded him 334 days of presentence custody credit.
Defendant timely appealed from the judgment. Appointed counsel filed a
brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts
of the case and requesting that we review the entire record. Pursuant to Anders v.
California (1967) 386 U.S. 738 (Anders), appointed counsel provided a list of potential
issues to assist us in our independent review. Defendant was granted 30 days to file
written arguments in his own behalf, but did not do so.
We have examined the entire record and counsel’s Wende/Anders brief.
After considering the entire record, we have found no reasonably arguable issue.
(Wende, supra, 25 Cal.3d 436.) We therefore affirm.
BACKGROUND
On June 10, 2012, two Wal-Mart asset protection associates observed Kelly
Loza placing “high-dollar” items in the top part of her shopping cart, near her purse. One
of the asset protection associates observed Loza meet with defendant in an aisle of the
store, show him an item, and have what appeared to be a friendly conversation. After
defendant left, Loza went to another department. One of the associates saw Loza put the
items in her purse, grab her purse, and exit the store.
The asset protection associate followed Loza out of the store. The associate
cut in front of Loza, showed her badge, and identified herself as a member of the
Wal-Mart asset protection team. Loza said, “I don’t have anything. I don’t know what
you’re talking about.” The other asset protection associate, who was a male, also
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approached Loza, with his badge in his hand, and identified himself as a Wal-Mart
employee. Both associates stepped in front of Loza to prevent her from getting away
with the Wal-Mart merchandise.
Loza screamed an unidentifiable name and then screamed, “help me.”
When Loza tried to push past the associates, the female associate grabbed her arm.
Soon after Loza screamed for help, defendant came toward her. The female
associate displayed her badge to defendant and said, “calm down, calm down,” and “I
work here.” Defendant grabbed the male associate from behind and turned him around.
The associate shook off defendant and displayed his badge. The associate told defendant,
“I work here at Walmart. I work for Walmart.” Defendant then pushed the male
associate in the chest with two hands, causing the associate to step back two or three feet.
Defendant then quickly walked toward Loza and the female associate.
Defendant pushed the female associate backwards into a wall, and said, “leave her
alone.”
The female associate retained her grip on Loza, and pulled the purse off
Loza’s shoulder. The female associate stepped to the side, dumped all the contents from
the purse onto the ground, and told defendant, “I’m not robbing this lady.”
Defendant told Loza to leave and go to the car. Loza reached into the pile
of merchandise, retrieved her wallet, and walked away. Defendant did not attempt to
take any of the merchandise, but also walked away.
Loza got into a red SUV, which was already running. The female asset
protection associate memorized the license plate number before Loza drove off.
Defendant did not get into the vehicle with Loza.
The total retail price of the merchandise in Loza’s purse was $155.20. Also
inside the purse, the associates found a medical paper with defendant’s name on it.
In an information, Loza and defendant were each charged with two counts
of second degree robbery, in violation of Penal Code sections 211 and 212.5,
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subdivision (c); a separate count was alleged for the use of force or fear against each of
the asset protection associates. The information also alleged that defendant had a prior
conviction for a serious and violent felony within the meaning of Penal Code
sections 667, subdivisions (d) and (e)(1), and 1170.12, subdivisions (b) and (c)(1), and
for a serious felony within the meaning of Penal Code section 667, subdivision (a)(1) and
Penal Code section 1192.7.
A jury found Loza not guilty of robbery on both counts, but found her
guilty of the lesser included offenses of petty theft (count 1) and grand theft (count 2).
The jury found defendant guilty of second degree robbery on both counts. Defendant
waived his right to a jury trial on the prior conviction and admitted that conviction.
Defendant’s motion for a new trial was denied. The trial court sentenced
defendant to a term of seven years in prison: the low term of two years for count 1, a
concurrent term of two years for count 2, and five years for the Penal Code section 667,
subdivision (a)(1) prior. For purposes of sentencing, the court struck defendant’s serious
and violent felony prior. The court also imposed a $240 restitution fine and a $240
parole revocation fine, which was suspended unless defendant’s parole was revoked; a
$40 security fee; a $30 criminal conviction assessment fee; and a $10 fine, plus a penalty
assessment. Defendant was awarded 334 days of presentence custody credit—291 actual
days, plus 43 good conduct days.
ANALYSIS
We have reviewed the record in accordance with our obligations under
Wende and Anders, and we find no arguable issues on appeal. Defendant himself has not
raised any issues for our review. (People v. Kelly (2006) 40 Cal.4th 106, 120, 124.)1
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People v. Kelly, supra, 40 Cal.4th at page 124, requires that an appellate court
describe the contentions “personally raised by the defendant and the reasons those
contentions fail” when a defendant files a supplemental brief in response to his or her
attorney’s Wende/Anders brief. In this case, defendant did not file a supplemental brief.
Counsel’s Wende/Anders brief included the following language, “[a]ppellant personally
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DISPOSITION
The judgment is affirmed.
FYBEL, J.
WE CONCUR:
ARONSON, ACTING P. J.
IKOLA, J.
requests that the court address the following,” immediately before a list of issues this
court might want to consider in conducting its independent review. We believe that when
the People v. Kelly court addressed the manner in which the Courts of Appeal are to
handle issues personally raised by a defendant, it intended to limit the holding of the case
to those issues raised in a separate, supplemental brief filed directly by the defendant, not
those issues that counsel informs the court have particular meaning or significance to the
defendant.
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