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P. v. Broughton

December 9, 2010

P.
v.
BROUGHTON



(Santa Clara County Super. Ct. No. CC932313)

The opinion of the court was delivered by: McAdams, J.

CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

THE PEOPLE, Plaintiff and Respondent, v. JANETTE LYNN BROUGHTON, Defendant and Appellant.

Defendant Janette Broughton appeals from a nine-year state prison sentence imposed following her no contest pleas and admissions to residential burglary and a prior serious felony "strike" prior conviction for residential burglary. On appeal, defendant argues that the trial court abused its discretion in denying her motion to strike the prior conviction for the purposes of the Three Strikes law. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) She also argues that trial counsel rendered ineffective assistance of counsel in that he failed to ask the court to strike the occupied residence allegation. We will affirm.

STATEMENT OF THE CASE

Defendant was jointly charged with co-defendant Baudelio Martinez with the first degree burglary of an occupied residence. (Pen. Code, §§ 459/460, subd. (a), 667.5, subd. (c)(21).)*fn1 The information also alleged that she had been previously convicted of a burglary which qualified as both a strike and a serious felony prior conviction. (§§ 667, subd. (b)-(i)/1170.12; 667, subd. (a).) On August 21, 2009, pursuant to a negotiated disposition, defendant pleaded no contest to the burglary charge and admitted the occupied residence and prior conviction allegations, with the understanding that the court would consider a Romero motion to strike her prior conviction. In exchange, she was promised that her sentence would not exceed nine years in prison. As part of the "package deal," co-defendant Martinez also pleaded guilty to the burglary charge for a four-year state prison sentence.*fn2

Defendant's Romero motion was heard and denied on December 4, 2009. The court denied probation and sentenced defendant to a term of nine years, as follows: the mitigated term of two years, doubled to four years pursuant to the Three Strikes law, plus a consecutive five years for the prior serious felony conviction pursuant to section 667, subdivision (a).

STATEMENT OF FACTS*fn3

On January 19, 2009, two 16-year-old brothers were home alone studying for their SAT's. The doorbell rang, but neither brother wanted to open the door. One of the brothers looked out the window and saw an older-looking green car on the street in front of the house. A woman later identified as defendant was inside the car. A man exited the vehicle and walked towards the house, with a magazine or catalog in his hand, while the woman drove away. One brother then heard a noise coming from a rear window. Fearing for their safety, the brothers fled to the garage to hide. They called 9-1-1 and their father.

The police arrived while the burglary was still in progress. An officer intercepted co-defendant Martinez and arrested him as he was leaving the house wearing white gloves and carrying a screwdriver and an iPod on his person. Inside the house the police found a suitcase and duffle bag that did not belong to the residents of the house. The suitcase and duffle bag contained a laptop computer and jewelry. The total value of the property was approximately $53,000. The point of entry was an upstairs bathroom window. Police located the two terrified brothers hiding behind a car in the garage.

Police found Martinez's cell phone when they searched him and discovered that the cell log included calls to a person named "Janette" that occurred during the burglary. When Martinez's cell phone began to ring, an officer answered the phone. A woman whispered: "Did you get away?" Pretending to be Martinez, the officer told the woman to meet him nearby. She said there were too many police at that location, and suggested he meet her at a restaurant. Officers responded to the restaurant and contacted defendant, who had her baby with her.

Martinez told police that he and defendant were driving around with their child in the car when they decided to burglarize a house to steal jewelry and other items that they could pawn. They chose the house because there were no cars in the driveway. He said defendant dropped him off so that he could burglarize the house. Defendant told police that she did not do anything. Martinez called her up to pick him up, but she could not understand what he was saying.

DISCUSSION

Denial of Romero ...


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