Filed 4/29/15 P. v. Delgado CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066175

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. Nos. SCD234672,
                                                                     SCD239427)
ALBERT DELGADO,

         Defendant and Appellant.


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

Fraser and Timothy R. Walsh, Judges. Affirmed.

         Steven J. Carroll, under appointment by the Court of Appeal; Albert Delgado, in

pro. per., for Defendant and Appellant.

         No appearance for Plaintiff and Respondent.
                   FACTUAL AND PROCEDURAL BACKGROUND

        In March 2012, Albert Delgado was charged in Case No. SCD239427 with two

felonies, including a residential burglary. (Pen. Code, §§ 459, 460.)1 The complaint also

alleged several prior felony convictions, including a residential burglary conviction in

2009, which qualified as both a serious felony prior and a strike prior.

        Following a preliminary hearing in April 2012, defendant was bound over,

arraigned and released on bail.

        In October 2012, defendant was arrested for three residential burglaries and four

theft-related crimes resulting in the filing of a new case (SCD243672). Following a

preliminary hearing and a motion to dismiss hearing pursuant to section 995, defendant

was ultimately charged in January 2013 in an amended information with two counts of

residential burglary and other felonies, plus several prior felony convictions, including

the 2009 residential burglary conviction referenced above. Appellant was also charged

with committing these offenses while released from custody on bail. (§ 12022.1, subd.

(b).)

        The parties reached a plea agreement resolving both cases and on July 11, 2013,

defendant entered his pleas. In case No. SCD239427, he pled guilty to residential

burglary, admitted the 2009 prior strike conviction, and agreed to a 32-month sentence

(one-third the middle term of four years, doubled). In case No. SCD243672, he pled

guilty to two residential burglaries; admitted the 2009 prior serious felony and strike


1       Subsequent statutory references are to the Penal Code.
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conviction; and admitted he committed the current burglaries while released from

custody on bail. Defendant agreed to a 13-year eight-month sentence, to run consecutive

to case No. SCD239427.

       On January 27, 2014, the court suspended the proceedings in both cases pursuant

to section 1368 and ordered a mental competency examination. On March 12, the parties

stipulated that Dr. David Naimark was qualified to render an opinion as to defendant's

mental competency and the court received Dr. Naimark's report into evidence. The court

found defendant was mentally competent to stand trial and reinstated criminal

proceedings. On May 28, the court imposed the stipulated sentence in each case for a

total term of 16 years four months.

                                  Case No. SCD239427

       On February 9, 2012, the resident of a home in the Mission Hills area of San

Diego heard a strange noise at the rear of his house. Upon investigation, he noted the

screen on his window had been removed and defendant was attempting to open the

window. In response to the victim inquiring whether defendant was trying to break in,

defendant said that if he was not careful, people like him could easily come in and take

his things. The victim called the police. As police approached the area, they observed

defendant running down a flight of stairs and into a vehicle. Defendant ignored the

officers' efforts to pull him over and a lengthy chase ensued with defendant crossing into

Mexico without being apprehended. Defendant was arrested about two weeks later at his

parole agent's office.



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                                   Case No. SCD243672

       In July 12, 2012, two homes in Alpine were burglarized. Defendant's home was

.14 miles from one of the homes and .37 miles from the other home.

       Victim Kleist left her home around 9:45 a.m. that morning and when she returned

a little after 11:00 a.m., she noticed a sliding glass door was open, her closet doors were

open, and items were strewn all over her bedroom. Upon further inspection, she

discovered several items were missing, including a gun, an iPod and a digital camera.

She also saw an empty water bottle inside the house near the front door. Defendant's

DNA matched the DNA on the water bottle. Items belonging to the victim were found in

defendant's home.

       Victim Cross left her home around 7:30 a.m., and when she returned around 11:30

a.m. she found her sliding glass door had been pried open and her front door was

unlocked. Upon further inspection, she discovered several items were missing, including

a shotgun and jewelry. Items belonging to the victim were found in defendant's home.

                                      DISCUSSION

       Appointed appellate counsel has filed a brief setting forth the proceedings before

the superior court. Counsel presents no argument for reversal, but asks that this court

review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436.

Likewise, counsel has reviewed the record but has not identified any possible, but not

arguable issues, as permitted by Anders v. California (1967) 386 U.S. 738.




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       We granted defendant permission to file a brief on his own behalf. He has

responded and raised two issues. We have reviewed these alleged errors and find they

have no merit.

       Defendant focuses on what he describes as his "ongoing mental health issues." He

maintains the 2014 competency examination was inadequate, incomplete, and biased, and

failed to take into account his mental health at the time of the crimes. Defendant does not

include a copy of Dr. Naimark's report; he does not refer to information contained in the

report; and he provides no evidence that at the time of the crimes in 2012 his mental

health was such that it rose to the level of a viable defense. Defendant's conclusory

assertions are insufficient to raise even a prima facie showing of error. (See People v.

Stanley (1995) 10 Cal.4th 764, 793.) Moreover, the record reflects the prosecutor and

defense counsel stipulated that the doctor who performed the competency examination

was qualified to do so; the doctor's report was received into evidence without objection;

and the court considered it and found defendant competent to stand trial. On this record,

there is no showing of error.

       Defendant also contends neither he nor his attorney were provided with "a full or

even a partial discovery." Defendant correctly notes that on the date set for his

preliminary hearing in SDC243672, he complained that he had not been provided with

discovery and requested a continuance. Defense counsel informed the court he was ready

to proceed and indicated defendant might request to represent himself if the matter was

not continued. Although the transcript is not entirely clear, it appears defense counsel

had received sufficient discovery to proceed with the preliminary hearing, but that

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defendant had not received a redacted copy of the discovery. The court denied the

motion to continue the preliminary hearing and defendant did not indicate he wished to

represent himself. There is no indication that counsel's ability to competently represent

defendant at the preliminary hearing was in any way compromised by any purported

inadequacy in the discovery process. In fact, at the conclusion of the preliminary

hearing, the magistrate dismissed three counts. There is no showing the court abused its

discretion in denying defendant's request to continue the preliminary hearing based on

discovery issues. (See People v. Jenkins (2000) 22 Cal.4th 900, 1037.)

       A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and

Anders v. California, supra, 386 U.S. 738 has disclosed no reasonably arguable appellate

issues. Competent counsel has represented Delgado on this appeal.

                                     DISPOSITION

The judgment is affirmed.




                                                                              HALLER, J.

WE CONCUR:



HUFFMAN, Acting P. J.



O'ROURKE, J.



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