Colbert

I. FACTUAL AND PROCEDURAL BACKGROUND2

Following his conviction on four felony counts of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)), Colbert was sentenced to a total term of two years eight months in prison, consecutive to a six year prison term he incurred due to a robbery he committed in San Mateo County while out on bail on the burglary charges.

1 Unspecified statutory references are to the Penal Code. 2 By order dated November 4, 2015, we denied Colbert’s request to take judicial notice of the trial record in Santa Clara County Superior Court case No. 206805. On the court’s own motion, we take judicial notice of this court’s unpublished opinion on the direct appeal from that case, People v. Colbert (Feb. 29, 2000, H019315). A. Facts relating to Count 1 “On December 26, 1996, while Susan Welter, the manager of a Shell service station in Campbell, California, saw one Black man talking to a clerk about lottery tickets, another Black man took money from the back office. Welter was shown a photo lineup almost a year after the incident and identified the man who was talking about lottery tickets. The clerk was unable to positively identify anyone.” (People…