People v. McNeely CA4/1

Filed 7/14/15 P. v. McNeely 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, D067359
Plaintiff and Respondent,
v. (Super. Ct. No. SCD194654)
DONALD RICHARD McNEELY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Leslie A. Rose, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
A jury in March 2006 found defendant Donald Richard McNeely guilty of first
degree burglary (Pen. Code, §§ 459 & 460).1 Defendant waived jury trial and admitted
1 All further statutory references are to the Penal Code.
as true two serious felony priors, one prison prior and 11 strike priors. The court
sentenced defendant to a total indeterminate term of 38 years eight months to life.
On November 17, 2014, defendant as a pro per filed a petition for resentencing
"under Proposition 36." Section 1170.126, added by Proposition 36 and effective
November 7, 2012, permits a person serving an indeterminate term of imprisonment
under the three strikes law to file a petition for recall of sentence and to request
resentencing. The court denied the petition, finding it was untimely. The court also
found defendant's first degree burglary conviction was a "serious felony" as defined by
section 1192, subdivision (c)(18) and thus he was not eligible for the relief afforded by
section 1170.126, subdivision (e)(1).
Defendant timely appealed from the order denying his petition. Pursuant to
People v. Wende (1979) 25 Cal.3d 436 (Wende), appointed counsel filed a brief on behalf
of defendant setting forth the facts of the case and requesting this court review the entire
record. In addition, pursuant to Anders v. California (1967) 386 U.S. 738, appointed
counsel set forth the following possible, but not arguable, issues to assist us in conducting
our Wende review: (1) whether the court erred in finding defendant's petition was
untimely; and (2) whether the court erred in finding defendant's commitment offense for
his indeterminate sentence was a "serious felony" as defined in section 1192.7,
subdivision (c)(18) and thus did not qualify for the relief provided by section 1170.126.
On our own motion, we gave defendant 30 days to file a brief on his behalf with
this court. He did not file any supplemental brief. We now affirm the order denying his
petition.
2
FACTUAL OVERVIEW2
On October 24, 2005, victim Badr Bakry notified the police that sometime
between 8:00 a.m. and 2:45 p.m. somebody had entered his hotel room and taken his
laptop computer, digital camera and digital tape recorder, all of which were in a black
bag that was also taken. The following day, victim Courtney Galbreath notified the
police that while attending a seminar at the same hotel, someone had taken her company
laptop computer and its case, which contained her wallet, identification and credit cards.
A few days later, an employee from a computer repair business contacted the
police to report that a man later identified as defendant brought in a laptop that was
password protected. The man wanted the employee to "unlock" the computer. The
employee noticed the laptop computer was registered to Bakry. The employee called
Bakry, and he confirmed his laptop had been stolen from his hotel room a few days
earlier.
When the police arrived, they admonished defendant and he waived his rights.
When confronted about the laptop, defendant claimed to have recently purchased it at
auction on the Internet for $340. When the police logged on to a store computer to obtain
the record of the purchase, defendant claimed he could not remember his password for
the auction site.
On further questioning by the police, defendant's story changed. He next claimed
he met someone three days earlier in Mission Valley and purchased the laptop for $320.
2 This summary is derived from the probation report prepared in connection with
defendant's March 2006 conviction for first degree burglary.
3
Defendant stated he could not remember the name of the person whom he bought it from.
Defendant then stated he purchased two computers and a brief case for $500 from an
individual that defendant knew was a thief. Although defendant admitted to the police
that his circumstances "looked bad," he suggested the officers arrest the individual who
sold defendant the items.
When officers searched defendant's car they found a digital camera and
checkbooks with Bakry's name on them. They also found a laptop computer that was
later determined to belong to Galbreath. Defendant was arrested. At the time of his
arrest, defendant was a parolee at large.
DISCUSSION
Based on our independent review of the entire record, we conclude the court did
not err when it found defendant was ineligible for resentencing under section 1170.126,
subdivision (e)(1) because his commitment offense for his indeterminate sentence was a
"serious felony" as defined in subdivision (c)(18) of section 1192.7. Subdivision (c) of
section 1192.7 states a "serious felony" includes burglary "of the first degree."
Here, the record clearly shows defendant's burglary conviction involved an
inhabited dwelling, namely a hotel room, and thus was a burglary in the first degree
within the meaning of section 460. Because the defendant was ineligible for resentencing
under subdivision (e)(1) of section 1170.126, we need not decide in this appeal whether
defendant's petition was timely.
Finally, a review of the entire record pursuant to Wende, supra, 25 Cal.3d 436 has
disclosed no other reasonably arguable appellate issue.
4
DISPOSITION
The court's order denying defendant's petition brought under Proposition 36 is
affirmed.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
IRION, J.
5