Filed 9/16/20 P. v. Tonella CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B303014
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA098907)
v.
CHRISTIAN YOUNG TONELLA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Scott T. Millington, Judge. Affirmed.
Paul Stubb, Jr., under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
__________________________
Defendant Christian Young Tonella appeals from his
conviction by a jury of burglary in the first degree, a serious
felony (Pen. Code, § 459), and petty theft, a misdemeanor (§ 484,
subd. (a) & § 490.2). We affirm.
Defendant was charged with first degree burglary with a
person present at the residence of Allen Peterson, and with petty
theft of property of a neighbor of Mr. Peterson’s. The information
also alleged two prior strike convictions, one for first degree
burglary in 1996 and one for robbery in 2000. These were also
alleged as prior serious felony convictions.
The charges arose from an incident on August 29, 2018,
much of which was captured on a surveillance video of activity on
Mr. Peterson’s front porch. Mr. Peterson is an elderly man in the
late stages of Alzheimer’s disease. He and Mrs. Peterson (who
requires a wheelchair) live in the front house on a lot that also
has a rear house, both owned by Mr. Peterson. One of the
Petersons’ daughters lives with them in the front house, and
another daughter lives in the rear house with Michael Sawyer.
All of them take care of Mr. and Mrs. Peterson. Mr. Peterson
owned collectible cars and antiques, including an antique
typewriter and a hand-carved Indian statue.
The video of the incident shows defendant bringing a cooler
or ice chest to the front porch, and shows Mr. Peterson (sitting
down) and defendant on the front porch. (Testimony showed
defendant had taken the cooler, along with gardening tools and
other items, from the property of a neighbor, Lisa Poulin.) The
video also shows defendant entering the front porch multiple
times while Mr. Peterson is not there, and leaving the house, first
with a lightweight wheelchair, then with the antique typewriter,
and then with the Indian statue.
Detective Paul Sanderson investigated the incident and
viewed the surveillance tape. Because there was no way to
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download the tape from the DVR, Detective Sanderson recorded
all the portions he believed pertinent with his cellular phone, and
this was viewed by the jury at trial. (Later attempts to obtain
the original video were unsuccessful, as it had long been
automatically deleted.) The detective testified the original video
he viewed lasted roughly an hour (from where defendant first
appeared on Mr. Peterson’s front porch until he left for the last
time). Detective Sanderson testified the original video had also
shown defendant sitting on the front porch and talking with
Mr. Peterson for 18 minutes, after defendant first appeared on
the porch.
After presentation of the prosecution’s case, the trial court
dismissed the allegation of a person present during the burglary,
as there was testimony Mr. Peterson was with his daughter in
the back yard, between the two houses, during the time the
wheelchair, typewriter and statue were being taken from the
residence. The defense presented no evidence. The jury
convicted defendant on both counts.
In a separate proceeding, the trial court found true the
two prior convictions, as prior strikes (Pen. Code, §§ 667,
subds. (b)-(j) & 1170.12) and as prior serious felonies (§ 667,
subd. (a)(1)). The court struck the 1996 prior conviction for
burglary as a strike prior under People v. Superior Court
(Romero) (1996) 13 Cal.4th 497.
For purposes of sentencing, the court struck the serious
felony enhancement for the 2000 robbery conviction, observing it
had used that as a strike, but imposed the serious felony
enhancement for the 1996 burglary conviction. Thus the court
imposed an aggregate term of 17 years in state prison: the high
term of six years on the burglary count, doubled for the strike,
plus one 5-year serious felony enhancement. The court ordered
defendant to serve 180 days, concurrently, on the misdemeanor
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conviction. The court awarded 848 days of presentence custody
credits; imposed various fines, fees and assessments as required
by law; and made other required orders.
Defendant filed a timely notice of appeal.
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, and that he sent defendant a copy of the record on
appeal. Defendant did not file a supplemental brief.
We have examined the entire record, including the sealed
transcripts from two pretrial hearings conducted pursuant to
People v. Marsden (1970) 2 Cal.3d 118, and are satisfied that
appointed counsel fully complied with his responsibilities and
that no arguable issues exist. (People v. Kelly (2006) 40 Cal.4th
106, 109-110; Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
WILEY, J.
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People v. Tonella CA2/8
Combined Opinion