Filed 5/1/15 P. v. Delgado CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066175
Plaintiff and Respondent,
v. (Super. Ct. Nos. SCD243672,
SCD239427)
ALBERT DELGADO,
ORDER MODIFYING OPINION
Defendant and Appellant.
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed on April 29, 2015, be modified as follows:
On page 1 of the opinion, the superior court case No. SCD234672 is deleted and in
its place, the correct case number is inserted so that the caption now reads: (Super. Ct.
Nos. SCD243672, SCD239427).
There is no change in the judgment.
HUFFMAN, Acting P. J.
Copies to: All parties
Filed 4/29/15 P. v. Delgado CA4/1 (unmodified version)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066175
Plaintiff and Respondent,
v. (Super. Ct. Nos. SCD234672,
SCD239427)
ALBERT DELGADO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey S.
Fraser and Timothy R. Walsh, Judges. Affirmed.
Steven J. Carroll, under appointment by the Court of Appeal; Albert Delgado, in
pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2012, Albert Delgado was charged in Case No. SCD239427 with two
felonies, including a residential burglary. (Pen. Code, §§ 459, 460.)1 The complaint also
alleged several prior felony convictions, including a residential burglary conviction in
2009, which qualified as both a serious felony prior and a strike prior.
Following a preliminary hearing in April 2012, defendant was bound over,
arraigned and released on bail.
In October 2012, defendant was arrested for three residential burglaries and four
theft-related crimes resulting in the filing of a new case (SCD243672). Following a
preliminary hearing and a motion to dismiss hearing pursuant to section 995, defendant
was ultimately charged in January 2013 in an amended information with two counts of
residential burglary and other felonies, plus several prior felony convictions, including
the 2009 residential burglary conviction referenced above. Appellant was also charged
with committing these offenses while released from custody on bail. (§ 12022.1, subd.
(b).)
The parties reached a plea agreement resolving both cases and on July 11, 2013,
defendant entered his pleas. In case No. SCD239427, he pled guilty to residential
burglary, admitted the 2009 prior strike conviction, and agreed to a 32-month sentence
(one-third the middle term of four years, doubled). In case No. SCD243672, he pled
guilty to two residential burglaries; admitted the 2009 prior serious felony and strike
1 Subsequent statutory references are to the Penal Code.
2
conviction; and admitted he committed the current burglaries while released from
custody on bail. Defendant agreed to a 13-year eight-month sentence, to run consecutive
to case No. SCD239427.
On January 27, 2014, the court suspended the proceedings in both cases pursuant
to section 1368 and ordered a mental competency examination. On March 12, the parties
stipulated that Dr. David Naimark was qualified to render an opinion as to defendant's
mental competency and the court received Dr. Naimark's report into evidence. The court
found defendant was mentally competent to stand trial and reinstated criminal
proceedings. On May 28, the court imposed the stipulated sentence in each case for a
total term of 16 years four months.
Case No. SCD239427
On February 9, 2012, the resident of a home in the Mission Hills area of San
Diego heard a strange noise at the rear of his house. Upon investigation, he noted the
screen on his window had been removed and defendant was attempting to open the
window. In response to the victim inquiring whether defendant was trying to break in,
defendant said that if he was not careful, people like him could easily come in and take
his things. The victim called the police. As police approached the area, they observed
defendant running down a flight of stairs and into a vehicle. Defendant ignored the
officers' efforts to pull him over and a lengthy chase ensued with defendant crossing into
Mexico without being apprehended. Defendant was arrested about two weeks later at his
parole agent's office.
3
Case No. SCD243672
In July 12, 2012, two homes in Alpine were burglarized. Defendant's home was
.14 miles from one of the homes and .37 miles from the other home.
Victim Kleist left her home around 9:45 a.m. that morning and when she returned
a little after 11:00 a.m., she noticed a sliding glass door was open, her closet doors were
open, and items were strewn all over her bedroom. Upon further inspection, she
discovered several items were missing, including a gun, an iPod and a digital camera.
She also saw an empty water bottle inside the house near the front door. Defendant's
DNA matched the DNA on the water bottle. Items belonging to the victim were found in
defendant's home.
Victim Cross left her home around 7:30 a.m., and when she returned around 11:30
a.m. she found her sliding glass door had been pried open and her front door was
unlocked. Upon further inspection, she discovered several items were missing, including
a shotgun and jewelry. Items belonging to the victim were found in defendant's home.
DISCUSSION
Appointed appellate counsel has filed a brief setting forth the proceedings before
the superior court. Counsel presents no argument for reversal, but asks that this court
review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436.
Likewise, counsel has reviewed the record but has not identified any possible, but not
arguable issues, as permitted by Anders v. California (1967) 386 U.S. 738.
4
We granted defendant permission to file a brief on his own behalf. He has
responded and raised two issues. We have reviewed these alleged errors and find they
have no merit.
Defendant focuses on what he describes as his "ongoing mental health issues." He
maintains the 2014 competency examination was inadequate, incomplete, and biased, and
failed to take into account his mental health at the time of the crimes. Defendant does not
include a copy of Dr. Naimark's report; he does not refer to information contained in the
report; and he provides no evidence that at the time of the crimes in 2012 his mental
health was such that it rose to the level of a viable defense. Defendant's conclusory
assertions are insufficient to raise even a prima facie showing of error. (See People v.
Stanley (1995) 10 Cal.4th 764, 793.) Moreover, the record reflects the prosecutor and
defense counsel stipulated that the doctor who performed the competency examination
was qualified to do so; the doctor's report was received into evidence without objection;
and the court considered it and found defendant competent to stand trial. On this record,
there is no showing of error.
Defendant also contends neither he nor his attorney were provided with "a full or
even a partial discovery." Defendant correctly notes that on the date set for his
preliminary hearing in SDC243672, he complained that he had not been provided with
discovery and requested a continuance. Defense counsel informed the court he was ready
to proceed and indicated defendant might request to represent himself if the matter was
not continued. Although the transcript is not entirely clear, it appears defense counsel
had received sufficient discovery to proceed with the preliminary hearing, but that
5
defendant had not received a redacted copy of the discovery. The court denied the
motion to continue the preliminary hearing and defendant did not indicate he wished to
represent himself. There is no indication that counsel's ability to competently represent
defendant at the preliminary hearing was in any way compromised by any purported
inadequacy in the discovery process. In fact, at the conclusion of the preliminary
hearing, the magistrate dismissed three counts. There is no showing the court abused its
discretion in denying defendant's request to continue the preliminary hearing based on
discovery issues. (See People v. Jenkins (2000) 22 Cal.4th 900, 1037.)
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and
Anders v. California, supra, 386 U.S. 738 has disclosed no reasonably arguable appellate
issues. Competent counsel has represented Delgado on this appeal.
DISPOSITION
The judgment is affirmed.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.
6