People v. Colombero CA5

Filed 11/7/13 P. v. Colombero CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent, F065688
v. (Super. Ct. No. F12902400)
JOHN FREDERICK COLOMBERO,
OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt,
Judge.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Cornell, Acting P.J., Kane, J. and Franson, J.
After a bench trial, the court convicted appellant, John Frederick Colombero, of
attempted second degree robbery (Pen. Code, §§ 664, 211).1 In a separate proceeding,
the court found true six prior prison term enhancements (§ 667.5, subd. (b)) and
allegations that Colombero had four prior convictions within the meaning of the three
strikes law (§ 667, subds. (b)-(i)). Following independent review pursuant to People v.
Wende (1979) 25 Cal. 3d 436, we affirm.
FACTUAL AND PROCEDURAL HISTORY
DeAnna Estrada worked as an examiner for the Department of Motor Vehicles
(DMV) in Fresno. On April 4, 2012, at 4:00 p.m., she was giving a driving test to
Stephanie Soto in the DMV’s parking lot. Estrada was seated in the front passenger’s
seat and Soto in the driver’s seat with the window down when Colombero approached
Soto’s door with a beer in his hand and stated in a demanding manner, “Give me some
money.” Estrada heard Soto tell Colombero she did not have any money. Colombero
then stooped down, looked at Estrada and said in an agitated tone, “Hey, white bitch, I
know you have money.” “I have a blade and I’ll use it.” Estrada told Colombero they
did not have any money. Colombero stepped back a few feet, put his right hand in his
front pants pocket, and fumbled through it as he cursed and mumbled. Colombero again
stated, “I have a blade and if you don’t give me some money I will use it.” At Estrada’s
direction, Soto put her window up and locked her door. Estrada then ran into the DMV
office to call security. However, unable to find a security officer, she instead told her
manager to call 911 because a homeless person was threatening her and Soto with a
knife. Estrada went back outside and saw Colombero walking away and Soto talking to
her father.
1 All further statutory references are to the Penal Code.
2
California Highway Patrol Officer Brett Boss responded to the DMV and was
provided a description of Colombero by Estrada. Boss located Colombero, who fit the
description provided by Estrada, at a trailer park. Colombero appeared to be slightly
agitated as Boss asked him if he had been in the DMV parking lot. Colombero replied
that he had been on the east side of the parking lot but denied speaking with any women
in a car. After noticing a bulge in one of Colombero’s pockets, Boss performed a pat
search and found a combination wine opener and knife in Colombero’s right front pants
pocket.
Officer Boss took Estrada to the trailer park where she identified Colombero as
the man who attempted to rob her and Soto.
On July 26, 2012, the district attorney filed a first amended information charging
Colombero with attempted robbery. The information alleged four serious felony
enhancements, six prior prison term enhancements, and that Colombero had four prior
convictions within the meaning of the three strikes law.
On July 30, 2012, the court found Colombero guilty of attempted robbery and all
enhancements and prior conviction allegations true.
On August 28, 2012, the court sentenced Colombero to an aggregate indeterminate
term of 41 years to life consisting of an indeterminate term of 25 years to life on the
attempted robbery conviction, three five-year serious felony enhancements, and a one-
year prior prison term enhancement. The court also ordered Colombero to pay a $9,840
restitution fine and a parole revocation fine in the same amount. The court awarded
Colombero 294 days of presentence custody credit consisting of 147 days of actual credit
and 147 days of conduct credit.
Colombero’s appellate counsel has filed a brief which summarizes the facts, with
citations to the record, raises no issues, and asks this court to independently review the
record. (People v. Wende, supra, 25 Cal. 3d 436.) However, in a letter filed on March 18,
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2013, Colombero poses several questions that do not raise any legal issues. He also
questions whether his alleged conduct of asking for money while telling the victims that
he had a “blade” and would use it constituted an attempted robbery. It did.
“‘Robbery is the felonious taking of personal property in the possession of
another, from his person or immediate presence, and against his will, accomplished by
means of force or fear.’ [Citation.]” (People v. Lindberg (2008) 45 Cal. 4th 1, 24.) “An
attempted robbery requires a specific intent to commit robbery and a direct, ineffectual
act (beyond mere preparation) toward its commission. [Citations.] Under general
attempt principles, commission of an element of the crime is not necessary.… As such,
neither a completed theft [citation] nor a completed assault [citation], is required for
attempted robbery. [Citations.]” (People v. Medina (2007) 41 Cal. 4th 685, 694-695.)
Colombero took several direct, albeit ineffectual, steps toward committing a
robbery when he approached the window of the victims’ car, demanded money, and
threatened them with a “blade” as he fumbled through his pants pocket. Further, it can
reasonably be inferred from these circumstances that Colombero committed the above
acts because he had the specific intent to take money from the victims by means of force
against their will, i.e., that he had the specific intent to commit a robbery. Thus, the
conduct attributed to Colombero by the victims clearly constituted an attempted robbery.
Further, following an independent review of the record, we find that no reasonably
arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed.
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