Filed 7/18/14 P. v. Spencer 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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, B252817
Plaintiff and Respondent, (Los Angeles County
Super. Ct. Nos. YA087515, SA082907,
v. BA333271)
DONALD R. SPENCER,
Defendant and Appellant.
APPEAL from judgments of the Superior Court of Los Angeles County. Mark S.
Arnold, Judge. Affirmed.
Hart J. Levin, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
**********
Defendant and appellant Donald R. Spencer appeals from the judgments of
conviction in Superior Court case No. YA087515 (jury trial), and from Superior Court
cases Nos. SA082907 and BA333271 (court trial/contested probation revocation
hearings). We affirm.
In case No. YA087515, defendant was charged by information with second degree
commercial burglary (CVS store) (Pen. Code, § 459; count 1)1; attempted second degree
commercial burglary (Walgreens) (§§ 459, 664; count 4); and petty theft with three priors
(CVS store) (§ 484, subd. (a), § 666, subd. (a); count 6). It was specially alleged
defendant had suffered a prior conviction for robbery within the meaning of the
“Three Strikes” law (§ 667, subds. (b)-(i), § 1170.12, subds. (a)-(d)).2
The events that resulted in the charges being filed against defendant occurred on
the afternoon of May 27, 2013, in the City of Torrance when defendant, and his
codefendant, drove to several stores, including a CVS drug store and a Walgreens, and
took numerous items of merchandise without paying.
At the arraignment hearing in June 2013, defendant requested to represent himself.
After giving the appropriate admonitions and taking defendant’s waivers on the record,
the court granted defendant’s motion pursuant to Faretta v. California (1975) 422 U.S.
806. The court appointed standby counsel. Defendant pled not guilty. The court also
informed defendant that his probation was being revoked in case Nos. SA082907 and
BA333271. Defendant was therefore remanded without bail.
At the next scheduled hearing, defendant requested the appointment of counsel,
and the court so ordered. Trial was continued to accommodate defense counsel who was
engaged in another trial. During this same time period, defendant declined the
prosecution’s offer to resolve the case.
1 All further undesignated section references are to the Penal Code.
2 Defendant was charged with a codefendant (Arthur J. Wilson). Codefendant
Wilson is not a party to this appeal.
2
Shortly before the start of trial, the court ordered the contested hearings on
defendant’s two probation matters to run concurrent with the trial on the current charges.
The court also bifurcated trial of the prior strike allegations.
The prosecutor presented various witnesses, including the investigating police
officers and the store employees who attested to the value of the various items of
merchandise stolen on May 27, 2013. The prosecutor also presented a surveillance video
showing portions of the burglaries in progress. Defendant moved for a mistrial based on
an alleged discovery violation by the prosecutor (failure to turn over surveillance video
from the CVS store). The court denied the motion, finding no discovery violation, in part
because the prosecutor had not been in possession of the videotape.
Defendant did not present any witnesses and elected not to testify in his own
defense. Defendant waived his right to a jury trial on the prior allegations.
The jury found defendant guilty as charged. In light of the jury’s verdict and
findings, the court found defendant in violation of probation in case No. SA082907 and
case No. BA333271. A joint sentencing hearing was set for October 24, 2013.
At the start of the sentencing hearing, defendant admitted his prior conviction for
second degree robbery (§ 211). Defendant was sentenced in case No. YA087515 to a
state prison term of four years eight months, calculated as follows: the midterm of
two years on count 1, the base count, doubled to four years because of the strike, plus a
consecutive eight-month term on count 4 (one-third the midterm). A four-year term (the
midterm doubled) was imposed and stayed on count 6 pursuant to section 654.
Defendant was awarded 302 days of custody credits and ordered to pay various fines and
fees.
In case No. SA082907, the prior strike case in which defendant had pled no
contest to one second degree robbery count, the court imposed a consecutive one-year
term (one-third the midterm), and credited defendant with 365 days of custody credits.
3
In case No. BA333271, arising from a 2007 petty theft with priors charge to which
defendant had pled no contest, the court imposed a consecutive eight-month term (one-
third the midterm), and credited defendant with 180 days of custody credits.
Defendant filed timely notices of appeal in all three actions. The three actions
have been docketed under one docket number in this court, with case No. YA087515
designated the lead case, consistent with the lower court designation.
We appointed appellate counsel to represent defendant. Appellate counsel filed a
brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) in which no issues were
raised. The brief included a declaration from counsel that he reviewed the record and
sent a letter to defendant explaining his evaluation of the record. Counsel further
declared he advised defendant of his right, under Wende, to submit a supplemental brief
within 30 days. Defendant did not file a supplemental brief.
In response to a letter request by defendant’s appointed appellate counsel, the trial
court awarded defendant, in case No. BA333271, an additional eight days of custody
credits, for a total of 188 days, and filed an amended abstract of judgment reflecting same
with this court. The trial court’s April 16, 2014 minute order reflects that an amended
abstract was duly filed and forwarded to the Department of Corrections and
Rehabilitation.
We have examined the entire record and are satisfied that appointed counsel fully
complied with his responsibilities in assessing whether or not any colorable appellate
issues exist. We conclude there are no arguable appellate issues. (People v. Kelly (2006)
40 Cal.4th 106; Wende, supra, 25 Cal.3d 436.)
DISPOSITION
The judgments of conviction in cases No. YA087515, SA082907, and BA333271
are affirmed.
GRIMES, J.
We concur:
BIGELOW, P. J. RUBIN, J.
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