Filed 4/24/14 P. v. Dambra CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. KELLY RONALD DAMBRA, Defendant and Appellant. G048667 (Super. Ct. No. 12NF1885)

O P I N I O N

Appeal from a judgment of the Su perior Court of Orange County, Gary S. Paer, Judge. Affirmed. John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

* * *2 I NTRODUCTION Defendant Kelly Ronald Dambra was co nvicted of two counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), a nd admitted he had suffered a prior conviction ( id. , §§ 667, subds. (d) & (e)(1), 1170.1 2, subds. (b) & (c)(1), & 667, subd. (a)(1)). The trial court se ntenced defendant to a term of seven years in prison, and awarded him 334 days of pr esentence custody credit. Defendant timely appealed from the ju dgment. Appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 ( Wende ), setting forth the facts of the case and requesting that we revi ew the entire record . Pursuant to Anders v. California (1967) 386 U.S. 738 ( Anders ), appointed counsel provided a list of potential issues to assist us in our independent revi ew. Defendant was granted 30 days to file written arguments in his own behalf, but did not do so.
We have examined the entire record and counsel’s Wende / Anders brief. After considering the entire record, we have found no reasonably arguable issue. ( Wende , supra , 25 Cal.3d 436.) We therefore affirm.

B ACKGROUND On June 10, 2012, two Wal-Mart asse t protection associates observed Kelly Loza placing “high-dollar” items in the top part of her shopping cart, near her purse. One of the asset protection associat es observed Loza meet with de fendant in an aisle of the store, show him an item, and have what appe ared to be a friendly conversation. After defendant left, Loza went to another department . One of the associates saw Loza put the items in her purse, grab her purse, and exit the store. The asset protection associate followed Lo za out of the store. The associate cut in front of Loza, showed her badge, an d identified herself as a member of the Wal-Mart asset protection team. Loza said, “I don’t have anything. I don’t know what you’re talking about.” The other asset pr otection associate, who was a male, also3 approached Loza, with his badge in his ha nd, and identified himself as a Wal-Mart employee. Both associates stepped in front of Loza to prevent her from getting away
with the Wal-Mart merchandise.
Loza screamed an unidentifiable name and then screamed, “help me.” When Loza tried to push pa st the associates, the female associate grabbed her arm.
Soon after Loza screamed for help, defendant came toward her. The female associate displayed her badge to defendant and said, “calm down, calm down,” and “I work here.” Defendant grabbed the male a ssociate from behind and turned him around.
The associate shook off defendant and displayed his badge. Th e associate told defendant,
“I work here at Walmart. I work for Walmart.” Defendant then pushed the male associate in the chest with two hands, causing th e associate to step b ack two or three feet. Defendant then quickly walked toward Loza and the female associate. Defendant pushed the female associate back wards into a wall, and said, “leave her
alone.” The female associate retained her gr ip on Loza, and pulled the purse off Loza’s shoulder. The female associate steppe d to the side, dumped all the contents from the purse onto the ground, and told defendant, “I’m not robbing this lady.” Defendant told Loza to leave and go to the car. Loza reached into the pile of merchandise, retrieved her wallet, and wa lked away. Defendant did not attempt to take any of the merchandise, but also walked away. Loza got into a red SUV, which was al ready running. The female asset protection associate memorized the license plate number before Loza drove off. Defendant did not get into the vehicle with Loza. The total retail price of the merchandise in Loza’s purse was $155.20. Also inside the purse, the associates found a medical paper with defendant’s name on it. In an information, Loza and defendant were each charged with two counts of second degree robbery, in violation of Penal Code sections 211 and 212.5,4 subdivision (c); a separate count was alleged fo r the use of force or fear against each of the asset protection associates. The informat ion also alleged that defendant had a prior
conviction for a serious and violent felo ny within the meaning of Penal Code sections 667, subdivisions (d) and (e)(1), and 1170.12, subdivisions (b) and (c)(1), and for a serious felony within the meaning of Penal Code section 667, subdivision (a)(1) and
Penal Code section 1192.7. A jury found Loza not gu ilty of robbery on both counts, but found her guilty of the lesser incl uded offenses of petty theft (count 1) and grand theft (count 2). The jury found defendant guilt y of second degree robbery on both counts. Defendant waived his right to a jury trial on the pr ior conviction and adm itted that conviction.
Defendant’s motion for a new trial was denied. The trial court sentenced defendant to a term of seven years in prison : the low term of two years for count 1, a concurrent term of two years for count 2, a nd five years for the Pe nal Code section 667, subdivision (a)(1) prior. For pu rposes of sentencing, the cour t struck defendant’s serious and violent felony prior. The court also imposed a $240 restituti on fine and a $240 parole revocation fine, which was suspende d unless defendant’s parole was revoked; a $40 security fee; a $30 criminal conviction a ssessment fee; and a $10 fine, plus a penalty
assessment. Defendant was aw arded 334 days of presenten ce custody credit—291 actual days, plus 43 good conduct days.
A NALYSIS We have reviewed the record in ac cordance with our obligations under
Wende and Anders , and we find no arguable issues on appeal. Defendant himself has not raised any issues for our review. ( People v. Kelly (2006) 40 Cal.4th 106, 120, 124.) 1

1 People v. Kelly, supra, 40 Cal.4th at page 

### 124, requires that an appellate court describe the contentions “personally rais ed by the defendant and the reasons those contentions fail” when a defendant files a s upplemental brief in response to his or her attorney’s Wende / Anders brief. In this case, defendant di d not file a supplemental brief. Counsel’s Wende / Anders brief included the following la nguage, “[a]ppellant personally5 D ISPOSITION The judgment is affirmed.

FYBEL, J.

WE CONCUR:

ARONSON, ACTING P. J.

IKOLA, J.

requests that the court address the following,” immediately before a list of issues this court might want to consider in conducting its independent review. We believe that when the People v. Kelly court addressed the manner in which the Courts of Appeal are to handle issues personally raised by a defendant , it intended to limit the holding of the case to those issues raised in a separate, supplem ental brief filed directly by the defendant, not those issues that counsel informs the court ha ve particular meaning or significance to the defendant.