Filed 2/2/15 P. v. Brewer 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F067886
         Plaintiff and Respondent,
                                                                         (Fresno Super. Ct. No. F12903226)
                   v.

VINCENT DURAY BREWER,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Denise Lee
Whitehead, Judge.
         John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
                                                        -ooOoo-



         *   Before Levy, Acting P.J., Cornell, J. and Poochigian, J.
                                      INTRODUCTION
       After a jury trial, appellant/defendant Vincent Duray Brewer was convicted as
charged of second degree burglary (Pen. Code, § 460, subd. (b)),1 and admitted he had
two prior strike convictions (§ 667, subds. (b)–(i)) and three prior prison term
enhancements (§ 667.5, subd. (b)). He was sentenced to the upper term of three years,
doubled to six years as the second strike sentence, plus one year for the enhancement.
The court ordered the remaining enhancements stricken.
       On appeal, his 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 (1979) 25 Cal.3d 436 (Wende).) We affirm.
                                            FACTS
       On or about April 20, 2012, Sokha Leng purchased a residence on South
Minnewawa, in a rural area of Fresno County, in a foreclosure sale.2 The house was on a
three-acre parcel that was reached through a driveway gate off the main road.
       As of May 2, 2012, the Lengs had not moved into the house, and they were not
living there, but the “For Sale” sign had been removed. There was a large shed adjacent
to the house, and Leng stored a Mercedes and some other personal property inside the
shed. The Lengs kept the residence and shed locked. The driveway gate was closed, but
it was not locked. The property was fairly well maintained.
       Around 5:00 p.m., Leng and his wife arrived at the property in separate cars. The
driveway gate was closed. Leng opened it, and they drove through to the house. A white
Honda was parked near the shed. The shed’s large roll-up door was closed. However, a
smaller shed door was open. The window had been pushed out and removed from that
door, and placed on the ground.

       1   All further statutory citations are to the Penal Code unless otherwise indicated.
       2 On   cross-examination, Leng admitted he had a prior conviction for theft in 1985.



                                               2.
         Leng walked into the shed and saw a man going through the trunk of the
Mercedes. He had cut the wires and torn the car’s amplifier from the trunk. Leng yelled
at the man. Another man suddenly appeared from the driver’s side of the Honda. Leng
later identified this man as defendant.
         Leng asked the men what they were doing. Defendant and his accomplice replied,
“Nobody was supposed to be here.” Leng told his wife to call the sheriff. Both men said
he did not need to call the sheriff. The two men walked toward Leng, and he backed
away.
         Defendant and his accomplice ran back to the white Honda. Leng believed they
did not take any of his property with them. Defendant’s accomplice got into the driver’s
seat, and defendant also got into the car. The Honda tried to drive away, but Leng’s car
blocked the driveway. The Honda backed into a bush, drove around Leng’s car, and
reached the main road. Leng got into his car and tried to follow the Honda but lost sight
of it.
         With the assistance of the sheriff’s department helicopter, deputies found
defendant and his accomplice walking along a ditch bank near an apartment complex.
The Honda was parked near their location in a carport at the apartment complex. A bush
was stuck under the rear bumper. Defendant gave a false name and birth date.3 Leng
was taken to the location and identified defendant.
         A deputy asked defendant what he had been doing. Defendant said he and a friend
went to a house on Minnewawa because they thought it was abandoned. Defendant said
a third party told him about the abandoned house, but he did not know that person’s
name. Defendant said they were going to take property that they also believed was


         3
         According to the probation report, defendant had a lengthy criminal record and
violated parole on five separate occasions. At the time of this offense, he had absconded
from parole.



                                              3.
abandoned. They went into the shed through an unlocked door and saw the Mercedes
and some boxes. They were looking through the things when someone arrived and asked
what they were doing there. Defendant told the man that they thought the property was
abandoned and apologized for being there. The man said he was going to call the police,
and defendant told him to go ahead. Defendant said they drove away and realized the
helicopter was flying above them. They parked the vehicle and walked away.
       The deputy asked defendant if he thought it was strange to find a Mercedes in the
shed. Defendant said it was not strange because he “sees it all the time.” The deputy
asked defendant why he did not wait for the officers to arrive since he thought the
property was abandoned. Defendant said he did not want to be contacted by the officers.
The deputy said he was going to do a fingerprint analysis on a mobile identification
device. Defendant then gave his true name and birth date.
       Defendant was arrested and taken to the sheriff’s substation. He was advised of
the Miranda4 warnings and agreed to answer questions. Defendant said he was homeless
and unemployed. He heard about an abandoned house on South Minnewawa, and
thought there was property that was “up for grabs” that he could take and sell. Defendant
refused to explain how he heard about it. Defendant said he entered the shed through an
open door. Defendant said he was looking for property that he could take. He tried to
remove speakers and a stereo from the car. Defendant said a man arrived and asked what
they were doing. Defendant said he apologized and thought the house was abandoned.
Defendant and his friend left without taking anything. They drove to an adjacent
neighborhood and walked away from their car when they saw the helicopter.




       4   Miranda v. Arizona (1966) 384 U.S.436



                                            4.
                                      DISCUSSION
       As noted above, defendant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that appellant was
advised he could file his own brief with this court. By letter on January 29, 2014, we
invited defendant to submit additional briefing. To date, he has not done so.
       After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
                                     DISPOSITION
       The judgment is affirmed.




                                             5.
