People v. Speer CA3

Filed 12/1/20 P. v. Speer CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Butte)
----

THE PEOPLE, C089289

Plaintiff and Respondent, (Super. Ct. No. 17CF00867)

v.

ROBERT ALLEN SPEER,

Defendant and Appellant.

Following a court trial, defendant Robert Allen Speer was found guilty of first
degree residential burglary. The court further found defendant had been convicted of two
strike offenses that also qualified for prior serious felony conviction enhancements.
While the court exercised its discretion to strike one of defendant’s strike enhancements,
it declined to strike the other and the two prior serious felony conviction enhancements.
As a result, defendant was sentenced to 22 years in prison. After “considering
[defendant]’s length of term in the state prison and future prospects on ability to pay,” the
court imposed various fines and fees.

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 On appeal, defendant contends there was insufficient evidence to support his
conviction for first degree residential burglary because the evidence does not establish he
entered the residence. He further contends the court erred during sentencing by declining
to strike more than a single strike enhancement and by imposing fines and fees without
first holding an ability-to-pay hearing. Finally, defendant argues his counsel was
ineffective for failing to request a hearing under Penal Code1 section 1001.36. We
disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I
The Burglary
On February 24, 2017, Oroville Police Officer Marcus Tennigkeit responded to a
call for service regarding two suspicious people in front of a home that had been
evacuated during the Oroville spillway crisis. When he arrived, Officer Tennigkeit
“didn’t observe anybody in the front of the residence” but “a gate to the right or west of
the residence was open.” As Officer Tennigkeit walked toward the gate, he heard
movement from inside the garage. Officer Tennigkeit then called and waited close to
five minutes for a backup officer to arrive. During that time, Officer Tennigkeit did not
see anybody go in or come out of the home; however, he could not see the back of the
house. He further did not hear anybody attempt to leave the backyard, which was
surrounded by shrubs and a fence.
When Oroville Police Sergeant Stephen Solano arrived, the two officers walked to
the backyard of the home and saw an open door, which led to the home’s attached garage.
Sergeant Solano searched the home for potential intruders with a K-9 officer, and Officer
Tennigkeit searched the backyard. During his search, Officer Tennigkeit found

1 Further section references are to the Penal Code unless otherwise indicated.

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defendant crouching behind a large tree. Officer Tennigkeit ordered defendant out at
gunpoint and arrested him.
After putting defendant in a police car, two officers, along with the K-9 officer,
again searched the home for potential intruders. In Officer Tennigkeit’s opinion, if
anybody was hiding in the home, the K-9 officer “[m]ost likely” would have found him
or her. No person was found inside of the home and every door, other than those in the
garage, was secure. Further, footprints on the wet grass in the backyard led to
defendant’s hiding spot and not to neighboring yards.
The door leading from the garage to the main house had its glass removed and its
screen damaged. Further, there were pry marks on the door jamb and door knob. The
home had been “ransacked.” “Drawers were dumped out, a few items were tipped over,
things were gone through not in an orderly fashion. Just things thrown about the
residence.” Upon a search of defendant’s backpack, Officer Tennigkeit discovered a
small “pry bar.” Also in the backpack and on defendant’s person were items from inside
the home. Missing from the home, and never recovered, were a brand new television and
lawn mower. Officer Tennigkeit also found methamphetamine on defendant.2

2 Defendant testified he was essentially homeless and, that the day before the
incident, his backpack had been stolen with all of his and his girlfriend’s belongings in it.
The day of the incident, defendant saw someone he thought was associated with the theft
of his backpack and confronted that person. The person told defendant he would take
defendant to the backpack, which led defendant to the backyard of the house where
defendant was eventually arrested. Defendant testified that the person eventually fled the
backyard, leaving defendant’s backpack behind with all of his belongings “strewn all the
way around it.” It was dark and defendant put everything on the ground into his pockets
without looking at what he was collecting. Defendant worked quickly because he heard
movement from inside the house. When he heard someone come into the backyard,
defendant hid where he was eventually discovered and arrested.

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 II
Court Proceedings
Before trial, defense counsel declared a doubt as to defendant’s competence. An
expert evaluated defendant’s mental competence and filed a report with the trial court.
Following a competency hearing, the trial court found defendant competent to stand trial.
After a court trial, the court found defendant guilty of first degree residential
burglary and found true two prior strike allegations and two prior serious felony
conviction allegations. When finding defendant guilty, the court said “that [it] was not
persuaded by [defendant]’s testimony and was persuaded by that of the officer and the
other witnesses. The Court is mindful that in finding [defendant] guilty of the burglary,
that does not impute to him all of the theft from the house that night. Rather the evidence
shows, in the Court’s mind, in that it was found on and around [defendant] and they were
items particularly identified as having been inside of the home that [defendant] did enter
the home with the intent to steal and did steal items contained therein regardless of
whether others also burglarized the home.”
The court later exercised its discretion to strike one of defendant’s prior strike
allegations -- a 1983 juvenile adjudication for voluntary manslaughter -- but declined to
strike the remaining prior strike allegation and prior serious felony conviction allegations.
Before ruling, the court reviewed the probation report. The probation report indicated
defendant “was diagnosed with unknown mental health conditions when he was at the
California Youth Authority. He has been in counselling off and on throughout his life,
and he indicated his diagnoses have changed on numerous occasions.” The probation
report further indicated defendant abused alcohol and methamphetamine from an early
age. Starting from the ages of 10 and 11, respectively, defendant used as much
methamphetamine and alcohol as he “could get [his] hands on.” He was a poor historian
regarding his periods of sobriety, but defendant indicated his consumption of
methamphetamine and alcohol had increased in 2016 after his mother was diagnosed with

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lung cancer. Defendant also indicated he had abused Oxycontin for a short time after
being prescribed the drug following an injury. Defendant admitted to the probation
officer he ingested methamphetamine on the day of the burglary. While defendant
acknowledged to the probation officer his mental health was evaluated as part of a
competency hearing, he “denied suffering any deterioration of his mental health,
explaining, ‘I just didn’t agree with my attorney.’ ” Defendant further attributed his
current offenses and past parole and probation violations to his substance abuse.
When deciding whether to strike defendant’s sentencing allegations, the court
stated the standard it was to apply when determining whether to strike allegations in the
interest of justice and then entered an analysis of the issue. It first considered the nature
and circumstances of defendant’s present convictions and found defendant targeted a
vulnerable victim, who was evacuated from the home, and took only personal items of no
apparent market value.
The court also considered defendant’s felony criminal record, which began in
1983 when he sustained his first strike conviction -- a juvenile adjudication for voluntary
manslaughter with the use of a firearm. Defendant was housed with the California Youth
Authority and eventually released from parole with no violations. Defendant, however,
reoffended in 1990 when he was convicted of possession of stolen property. Defendant
remained crime free until 1995 when he was convicted of battery. In 1996, he was again
convicted of possession of stolen property, as well as failure to appear and another
property offense. Defendant was convicted of his second strike offense in 1998 for oral
copulation with a minor under 14 years of age. Defendant was released from prison in
2004, but violated parole in 2006 and 2007. Then in 2009, defendant was convicted of a
Health and Safety Code violation that would be a misdemeanor but for defendant’s
registration obligation under section 290. Defendant was also convicted of several
misdemeanors throughout this time as well.

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 The court then considered defendant’s character and prospects. It noted defendant
had remained free from crime for appreciable periods of time in his life. The court also
noted that if it struck a prior strike allegation, defendant would serve a determinate term
of 22 years in prison, which at his current age of 52, would result in him being released at
an age when he is less likely to reoffend.
Finally, the court considered whether the determinate sentence of 22 years was
disproportionate to defendant’s conduct. The court thought it was not disproportionate
because, although defendant was under the influence of drugs at the time he committed
the burglary, the sentence was necessary to deter his recidivist behavior in light of
defendant’s refusal to acknowledge responsibility in his current case.
The court sentenced defendant to 22 years in prison -- six years for the first degree
burglary conviction, doubled pursuant to the three strikes law, and 10 years for the two
prior serious felony conviction allegations. The court then imposed fines and fees after
“considering [defendant]’s length of term in the state prison and future prospects on
ability to pay.”
Defendant appeals.
DISCUSSION
I
Sufficient Evidence Supports Defendant’s First
Degree Residential Burglary Conviction
Defendant argues there was insufficient evidence to support his conviction for first
degree residential burglary. We disagree.
“In assessing a claim of insufficiency of the evidence, the reviewing court’s task is
to ‘review the whole record in the light most favorable to the judgment . . . to determine
whether it discloses substantial evidence -- that is, evidence which is reasonable, credible,
and of solid value -- such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.’ ” (People v. Ringo (2005) 134 Cal.App.4th 870, 880.)

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“ ‘The standard of review is the same in cases in which the People rely mainly on
circumstantial evidence. [Citation.] “Although it is the duty of the [trier of fact] to acquit
a defendant if it finds that circumstantial evidence is susceptible of two interpretations,
one of which suggests guilt and the other innocence [citations], it is the [trier of fact], not
the appellate court which must be convinced of the defendant’s guilt beyond a reasonable
doubt.” ’ ” (People v. Snow (2003) 30 Cal.4th 43, 66.)
To establish the crime of burglary, the prosecution must prove an unlawful entry
into a residence with the intent to commit a larceny or any felony. (§§ 459, 460,
subd. (a); People v. Allen (1999) 21 Cal.4th 846, 863, fn. 18.) The crime is complete
upon entry into the defined structure with the larcenous intent, regardless of whether any
theft takes place. (Allen, at p. 863, fn. 18; In re Matthew A. (2008) 165 Cal.App.4th 537,
540 [“One may be liable for burglary upon entry with the requisite intent, regardless of
whether the felony or theft actually committed is different from that originally
contemplated, or whether any felony or theft actually is committed”].) The intent
required to commit a burglary must be present at the time of entry. (People v. Sparks
(2002) 28 Cal.4th 71, 85, fn. 17.)
For an entry to occur, the defendant must penetrate the building’s outer boundary.
(Magness v. Superior Court (2012) 54 Cal.4th 270, 273.) “[P]ossession of recently stolen
property by itself is not sufficient to support a finding of guilt of any offense -- including
theft-related offenses -- and, accordingly, there must be other corroborating evidence of
the defendant’s guilt.” (People v. Moore (2011) 51 Cal.4th 1104, 1130.) However,
“[w]hen . . . a defendant is found in possession of property stolen in a burglary shortly
after the burglary occurred, the corroborating evidence of the defendant’s acts, conduct,
or declarations tending to show his guilt need only be slight to sustain the burglary
convictions.” (People v. Mendoza (2000) 24 Cal.4th 130, 176, superseded by statute on
other grounds as stated in People v. Brooks (2017) 3 Cal.5th 1, 63, fn. 8.) As
corroborating evidence, the trier of fact may consider the time, place, and manner of the

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defendant’s possession of stolen property, the defendant’s conduct, and any other
evidence that tends to connect the defendant with the crime. (People v. Parson (2008) 44
Cal.4th 332, 355.)
Defendant acknowledges and minimizes corroborating evidence of his entry, such
as his possession of items from the home and a pry bar similar to that used to enter the
home. He also acknowledges and minimizes his proximity to the home and flight from
police. Defendant argues this was all insufficient to convict him because the evidence
established somebody else had taken items from the home and no testimony established
the pry marks on the door matched the pry bar found in defendant’s possession.
Defendant’s argument amounts to an argument we should believe his theory -- that
someone else burglarized the home and left items in the backyard defendant collected
while retrieving his backpack -- over the theory presented by the prosecution -- that
defendant used the pry bar to enter the home and take the items later found in his
possession. This issue of credibility was left to the trier of fact (People v. Zamudio
(2008) 43 Cal.4th 327, 357), who rejected defendant’s testimony. Indeed, the court stated
that while someone else may have taken more expensive items from the home,
defendant’s possession of inexpensive and personal items from the home convinced it
defendant came into possession of those items after entering the home and that the items
were not left behind by the previous intruder. Considering defendant’s possession of a
pry bar, proximity to the home, and flight from police, sufficient evidence supports the
burglary conviction. (See People v. Parson, supra, 44 Cal.4th at p. 355.)
II
The Trial Court Did Not Abuse Its Discretion By Declining To Strike One Of Defendant’s
Prior Strike Allegations And His Two Prior Serious Felony Conviction Allegations
Defendant argues the trial court abused its discretion by striking only one of his
prior strike allegations because “a sentence of 22 years in state prison for the instant

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offense, in light of [defendant’s] personal circumstances, the nature of the offense, and
the nature of his criminal record is patently absurd and unjust.” We disagree.
When a trial court exercises its discretion in responding to a request to strike an
enhancement “in furtherance of justice,” we review for abuse of discretion. (§ 1385;
People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977; People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 531; People v. Ortega (2000) 84 Cal.App.4th 659, 666.)
The party attacking the sentence must “ ‘clearly show that the sentencing decision was
irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is
presumed to have acted to achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on review.’ ”
(Alvarez, at pp. 977-978.) We will not reverse simply because reasonable people might
disagree with the court’s decision. (Id. at p. 978.)
Defendant argues the court ruled contrary to the spirit of Proposition 363 because
it imposed punishment that was disproportionate to his crime, resulting in a long sentence
and waste of taxpayer dollars. Defendant points to the trial court’s statement when
imposing the upper term for defendant’s burglary conviction that it found no mitigating
factors to prove the court did not adequately consider all the circumstances relevant to
determination of the proper sentence. But defendant is not challenging the court’s
imposition of the upper term. Instead, he is challenging the court’s refusal to strike a
prior strike allegation and two prior serious felony conviction allegations. When the
court ruled on that motion, it considered the circumstances of defendant’s crime as well
as factors related to his background, character, and prospects, as it was required to do.
(See People v. Williams (1981) 30 Cal.3d 470, 489 [courts must consider all the facts of
the offense and all the circumstances related to defendant when exercising discretion

3 See People v. Estrada (2017) 3 Cal.5th 661, 666.

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under § 1385]; see also People v. Shaw (2020) 56 Cal.App.5th 582, 585-587 [courts
apply the same standard when exercising discretion under §1385 to strike a prior serious
felony conviction enhancement].)
The court further analyzed whether the 22-year sentence imposed was
disproportionate to defendant’s conduct as defendant argues on appeal it was required to
do under Proposition 36. The court concluded the sentence was not disproportionate
because the sentence was necessary to deter defendant’s recidivist behavior in light of
defendant’s refusal to take responsibility for committing the burglary. No error occurs if
the trial court evaluates all relevant circumstances to ensure that the punishment fits the
offense and the offender. (People v. Shaw, supra, 56 Cal.App.5th at p. 587.)
Still, defendant argues the court failed to consider defendant’s mental health or
appreciate the length of time since he committed his qualifying offenses and remained
free from incarceration. Evidence of defendant’s mental health, however, was limited to
him receiving an unknown diagnosis as a juvenile and counseling off and on throughout
life, which led to other unknown diagnoses. While defendant’s mental health was
evaluated in connection with his criminal proceeding, nothing from that evaluation was
presented to the court to consider before exercising its discretion to strike defendant’s
sentencing allegations. Instead, defendant explained to the probation officer that the need
for an evaluation was a misunderstanding. Indeed, defendant did not provide evidence of
his current mental health status but instead attributed his current criminality to heavy
alcohol and methamphetamine use. The court acknowledged the mitigating effect of
addiction and weighed this circumstance in favor of defendant to justify striking one of
his strike allegations. Moreover, given defendant’s prolonged addiction and purported
mental health challenges, the issues appear intertwined and considered by the trial court.
To the extent defendant argues the court did not assign the proper weight to any
circumstance surrounding defendant’s offense and personal history, that argument must
fail. As long as the trial court weighed all the relevant circumstances, we cannot reverse

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simply because we disagree with the trial court’s ultimate ruling. (People v. Superior
Court (Alvarez), supra, 14 Cal.4th at p. 978.) Here, the court entered a detailed analysis
of defendant’s current offense, criminal history, character and prospects, and whether the
proposed sentence was disproportionate to defendant’s conduct. Accordingly, the trial
court did not abuse its discretion.
III
The Trial Court Determined Defendant’s Ability
To Pay Before Imposing Fines And Fees
Defendant contends the trial court erred by failing to hold an ability-to-pay hearing
before imposing fines and fees. He acknowledges he was sentenced after Dueñas held
that principles of due process would preclude a trial court from imposing the fine and
assessments at issue without first determining a defendant’s ability to pay. (People v.
Dueñas (2019) 30 Cal.App.5th 1157.) Defendant, however, fails to acknowledge the trial
court here made a finding, based on the length of defendant’s incarceration and his future
prospects, that defendant had the ability to pay the fines and fees imposed. Thus, the trial
court complied with the holding of Dueñas that it determine defendant’s ability to pay
before imposing fines and fees.
To the extent defendant wanted the trial court to hold a hearing before determining
his ability to pay, defendant was required to object and request a hearing. (See People v.
Castellano (2019) 33 Cal.App.5th 485, 490 [a trial court is required to determine a
defendant’s ability to pay only if the defendant raises the issue, and the defendant bears
the burden of proving an inability to pay].) Defendant’s failure to do so has resulted in
forfeiture of his appellate claim. (Cf. People v. Speight (2014) 227 Cal.App.4th 1229,
1248-1249 [ruling counsel should have raised an argument during a sentencing hearing
that occurred five weeks after a California Supreme Court decision announced the
relevant principle].)

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 IV
Counsel Was Not Ineffective
Defendant contends his counsel was ineffective for failing to request a hearing on
whether he qualified for pretrial mental health diversion under section 1001.36 during his
criminal proceedings.4 We disagree.
“When challenging [counsel’s actions] on grounds of ineffective assistance, the
defendant must demonstrate counsel’s inadequacy. To satisfy this burden, the defendant
must first show counsel’s performance was deficient, in that it fell below an objective
standard of reasonableness under prevailing professional norms. Second, the defendant
must show resulting prejudice, i.e., a reasonable probability that, but for counsel’s
deficient performance, the outcome of the proceeding would have been different. When
examining an ineffective assistance claim, a reviewing court defers to counsel’s
reasonable tactical decisions, and there is a presumption counsel acted within the wide
range of reasonable professional assistance. It is particularly difficult to prevail on an
appellate claim of ineffective assistance. On direct appeal, a conviction will be reversed
for ineffective assistance only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no satisfactory explanation.
All other claims of ineffective assistance are more appropriately resolved in a habeas
corpus proceeding.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Section 1001.36 provides pretrial diversion may be granted if the trial court finds
all of the following criteria are met: (1) the defendant suffers from a recently diagnosed

4 Defendant spends much time arguing the enactment of section 1001.36 is
retroactive to him. But defendant was tried and sentenced after the effective date of
section 1001.36, thus there is no dispute that the enactment of pretrial mental health
diversion was available to him. (Stats. 2018, ch. 34, § 24, eff. June 27, 2018)

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mental disorder enumerated in the statute; (2) the disorder was a significant factor in the
commission of the charged offense, and that offense is not one of the offenses
enumerated in subdivision (b); (3) “[i]n the opinion of a qualified mental health expert,
the defendant’s symptoms of the mental disorder motivating the criminal behavior would
respond to mental health treatment”; (4) the defendant consents to diversion and waives
his right to a speedy trial; (5) the defendant agrees to comply with treatment as a
condition of diversion; and (6) the defendant will not pose an unreasonable risk of danger
to public safety, as defined in section 1170.18, if treated in the community. (§ 1001.36,
subd. (b)(1)-(2).) If the treatment under pretrial diversion is deemed successful, the
charges shall be dismissed and the defendant’s criminal record expunged. (§ 1001.36,
subds. (b)(1)(A)-(C), (c)(3), (e).)
The statute further provides: “At any stage of the proceedings, the court may
require the defendant to make a prima facie showing that the defendant will meet the
minimum requirements of eligibility for diversion and that the defendant and the offense
are suitable for diversion. The hearing on the prima facie showing shall be informal and
may proceed on offers of proof, reliable hearsay, and argument of counsel. If a prima
facie showing is not made, the court may summarily deny the request for diversion or
grant any other relief as may be deemed appropriate.” (§ 1001.36, subd. (b)(3).)
Defendant points to his mental competency evaluation, which indicated he
suffered from multiple mental health disorders, as well as counsel’s and the court’s
comments connecting defendant’s drug use to the commission of the crime as evidence
counsel should have requested a hearing. Even so, defendant cannot demonstrate that
counsel’s failure to request an eligibility hearing fell below an objective standard of
reasonableness.
Defendant’s mental competency evaluation included an opinion of the authoring
expert that “[b]ased on [defendant’s] history of multiple suicide attempts, antisocial and
paranoid personality traits, history of multiple convictions for criminal offenses, the

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prospect of a lengthy prison sentence, and his current level of anger, . . . [defendant]
Poses Moderately High Risk of Harm to Self and Danger to Others.” Further, the
court observed when declining to strike several of defendant’s sentencing allegations that
a lengthy sentence was necessary to deter defendant’s recidivist behavior and protect the
public. While there was no finding defendant posed an unreasonable risk of committing
a violent felony, which would disqualify defendant from pretrial diversion (§ 1001.36,
subd. (b)(1)(F)), the findings that were made support an inference that counsel’s personal
interactions with defendant led counsel to believe defendant was disqualified from
pretrial mental health diversion due to his danger to public safety. Accordingly, counsel
was not ineffective.
DISPOSITION
The judgment is affirmed.

/s/
Robie, Acting P. J.

We concur:

/s/
Murray, J.

/s/
Hoch, J.

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