Filed 1/14/16 P. v. Middleton CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068302

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN336498)

JASON EDWARD MIDDLETON,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Richard S.

Whitney, Judge. Affirmed.



         Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.
       A jury convicted Jason Edward Middleton of two counts of first degree burglary

(Pen. Code, §§ 459, 460)1 and found true allegations for each count that another person,

not an accomplice, was present in the residence during commission of the burglary

(§ 667.5, subd. (c)(21)). The jury also convicted Middleton of one count of possessing

stolen property. (§ 496, subd. (a).)

       Following Middleton's admission of a prior serious felony conviction under

section 667, subdivision (d), the court sentenced Middleton to a determinate term of 11

years 8 months imprisonment, which it calculated as follows: four years for the first

burglary conviction (the low term of two years, doubled under section 667, subdivision

(e)(1)); two years eight months for the second burglary conviction (one-third of the

middle term of four years, doubled under section 667, subdivision (e)(1)); and five years

for an enhancement under section 667, subdivision (a)(1) for Middleton's prior serious

felony conviction. The court also sentenced Middleton to the middle term of two years

for his conviction for possessing stolen property, which the court stayed under section

654.

       Middleton appeals. Middleton's appellate counsel has filed a brief pursuant to

People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S.

738 (Anders) stating she is unable to find any reasonably arguable issues for reversal on

appeal. Middleton's counsel asks this court to review the record independently for error

as required by Wende. We granted Middleton the opportunity to file a supplemental brief



1      Further statutory references are to the Penal Code.
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on his own behalf. He has not responded. We have independently reviewed the record

under Wende and found no reasonably arguable issues for reversal on appeal. We

therefore affirm.

                                          FACTS

       For purposes of this section, we state the evidence in the light most favorable to

the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins

(2014) 230 Cal.App.4th 991, 994.)

       In the early morning hours of September 6, 2014, 16-year-old Charles S. awoke in

his bedroom in Oceanside, California to see a man bending over his shelving area.

Believing the man to be his older brother's friend, Charles called out the friend's name.

The man did not respond. Instead, the man picked up Charles's backpack, walked up a

staircase to Charles's balcony, and ran away. Charles discovered that his backpack,

laptop computer, and GoPro camera were missing from his bedroom. Charles's family

called police. Charles believed the man had short hair or a shaved head and was wearing

a black athletic jacket with white stripes down the arms.

       Sandra Wolcott lived in the same condominium complex as Charles. Later the

same morning, Wolcott discovered several items missing from her residence, including a

laptop computer, a tablet computer, silver flatware, and rare coins. Since her front door

was locked, Wolcott believed that whoever had taken the items had entered from her

balcony while she was sleeping. When Wolcott learned that another residence had been

burglarized as well, she went to the police.



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       Soon after the burglaries, Colton Genereaux encountered Middleton on the beach

in Oceanside. They did not know each other previously. Genereaux asked Middleton for

a cigarette, and they began to talk. Middleton had a backpack with him. As they talked,

Middleton removed two laptops, a tablet computer, and a GoPro camera from the

backpack and examined them. Middleton was wearing a black athletic jacket (a

"hoodie") with white stripes on the arms. He was very sweaty and appeared tired.

       Middleton and Genereaux went to a diner to eat breakfast. Genereaux asked

Middleton how he had obtained the various electronics in his backpack. Middleton said

he had broken into a house. He recounted how a child had woken up and saw him when

he took a laptop from one of the rooms. Middleton's story bothered Genereaux;

Genereaux had experienced something similar as a child. Genereaux decided to find a

way to return the stolen property to the child.

       Middleton asked Genereaux if he knew anyone who wanted to buy the electronics.

Genereaux said he would try to find someone. He suggested that Middleton hide the

electronics somewhere. Middleton agreed. They went to a freeway overpass and hid a

backpack with the electronics in a bush. Middleton and Generaux walked back towards

downtown Oceanside and separated.

       Genereaux went to a police resource center in downtown Oceanside. He told the

police about his encounter with Middleton and the stolen electronics. As Genereaux

spoke to the police, he spotted Middleton on the street outside the resource center. He

told the police, who questioned Middleton and then arrested him. At the time of his

arrest, Middleton had a backpack, the GoPro camera, and a black athletic jacket with

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white stripes on the arms. With the information provided by Genereaux, the police

recovered the backpack and electronics from the bush. Charles and Wolcott later

identified the laptops, tablet computer, GoPro camera, and backpack as their stolen items.

The police did not recover Wolcott's silver flatware, her rare coins, and some other items

she reported stolen.

       At trial, Genereaux, Charles, Wolcott, various law enforcement officers, and other

individuals testified. Middleton did not testify. The defense questioned Genereaux's

credibility and suggested he was the likely perpetrator.

                                      DISCUSSION

       As we have noted, Middleton's appellate counsel has filed a brief pursuant to

Wende, supra, 25 Cal.3d 436, and Anders, supra, 386 U.S. 738, stating she was unable to

find any reasonably arguable issues for reversal on appeal. Middleton's counsel has

identified two possible, but not arguable, issues under Anders: (1) "Was the court

required to instruct the jury sua sponte with CALCRIM No. 359 (corpus delicti) because

the prosecution relied on [Middleton's] out of court statement that he owned the

backpack, jacket, and GoPro [c]amera to prove his guilt? Since the corpus delicti

instruction concerns statements of guilt by the defendant, must this instruction always be

given in conjunction with CALCRIM No. 358 — which was given in this case . . . ? If

error, was it prejudicial error? (People v. Howk (1961) 56 Cal.2d 687, 707.)" (2) "Did

the court abuse its discretion by denying [Middleton's] motion, pursuant to People v.

Superior Court (Romero) [(1996)] 13 Cal.4th [497], to strike his strike conviction?



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(People v. Superior Court (Alvarez) [(1997)] 14 Cal.4th 968, 977; People v. Williams

(1998) 17 Cal.4th 148, 162.)"

      We have independently reviewed the record under Wende and considered the

possible issues identified by Middleton's counsel. We have found no reasonably arguable

issues for reversal. Competent counsel has represented Middleton in this appeal.

                                    DISPOSITION

      The judgment is affirmed.



                                                                              NARES, J.

WE CONCUR:



BENKE, Acting P. J.



HALLER, J.




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