P. v. Divincenzo
Filed 10/9/13 P. v. Divincenzo CA4/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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THE PEOPLE,
Plaintiff and Respondent,
v.
DARRIN MATTHEW DIVINCENZO,
Defendant and Appellant.
E058542
(Super.Ct.No. FVI05479)
OPINION
APPEAL
from the Superior Court
of
Bernardino County.
Michael A. Smith, Judge. (Retired
Judge of the San Bernardino Super. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.) Affirmed.
Anna
M. Jauregui-Law, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent.
Defendant
and appellant Darrin Matthew Divincenzo appeals after the trial court denied
his petition for “Three Strikes†law resentencing under the reforms enacted by
Proposition 36. We affirm.
FACTS AND
PROCEDURAL HISTORY
Defendant
was charged by information in January 1997 with one count of
eventually pleaded guilty in June 2000.
In December 2000, the court sentenced defendant as a third striker to a
prison term of 25 years to life.
name="_ftnref1" title="">[1] In March 2013, after the passage of
Proposition 36, reforming the Three Strikes law, defendant in propria persona
filed a petition to recall the sentence and requesting resentencing. The trial court found that defendant was not
eligible under the criteria of Proposition 36 for resentencing, and denied the
petition.
Defendant
filed a notice of appeal after this ruling.
ANALYSIS
Counsel
was appointed to represent defendant on appeal.
Counsel has filed a brief under authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d
493], setting forth a summary of the proceedings and facts, but not arguing any
specific issues. Accordingly, we must
conduct a review of the entire record to determine whether the record reveals
any issues that would, if resolved favorably to defendant, result in a reversal
or modification of the judgment or ruling being appealed. (Anders
v. California, supra, 386 U.S.
738 [87 S.Ct. 1396, 18 L.Ed.2d 493]; People
v. Wende, supra, 25 Cal.3d 436; People
v. Feggans (1967) 67 Cal.2d 444; see also People v. Johnson (1981) 123 Cal.App.3d 106.) Counsel did identify one potential issue for
review, i.e., whether the trial court erred in denying defendant’s petition to
recall his sentence and for resentencing under Proposition 36 (Pen. Code,
§ 1170.126).
Defendant
has also been offered the opportunity to file a personal supplemental brief,
which he has done. Defendant’s personal
supplemental brief raises several points:
defendant contends (1) the Three Strikes law is unconstitutional, and
violates the double jeopardy clause; (2) he was promised in writing at his
guilty plea proceedings in respect to his 1989 and 1991 convictions that the
first degree burglary offenses were not strikes, and could not be used as
strikes in future proceedings; (3) his crimes were not violent because he never
used weapons to carry them out, so he should be considered a nonviolent
offender equally with other nonviolent offenders who are eligible for
resentencing under the three
strikes reform provisions of Proposition 36.
He also makes in essence a plea for mercy: his crimes were committed because of his use
of illegal drugs. Since his latest
imprisonment, he has taken classes or attended programs to overcome his drug
problems. He claims he no longer craves
drugs, and complains that he was never previously offered drug diversion.
Pursuant
to People v. Kelly (2006) 40 Cal.4th
106, we have independently reviewed the entire record. We have found no arguable issues.
Defendant’s
current conviction is for first degree residential burglary. The trial court properly determined that the
current conviction is for a serious felony, and that defendant is not eligible
for resentencing under Penal Code section 1170.126.
Defendant
appears to be laboring under a misapprehension as to the seriousness of his
crimes. Both his strikes, as well as his
current conviction, are for first degree residential burglary. Notwithstanding that defendant claims he was
not armed when he committed these crimes, the Three Strikes law includes
residential burglary as a strike, because the conduct, even if nonviolent, is
still “so dangerous that its repeated occurrence might in the minds of the
voters call for enhanced punishment equivalent to that imposed upon violent
recidivists.†(People v. Jackson (1985) 37 Cal.3d 826, 832.)
We
reject defendant’s claim that his prior offenses should not be treated as
strikes. Defendant states that he “told
my origional lawyer (Pub Defender)
when I signed my
‘deals’ in 1989 and 1991 they
strikes at sentencing was a breech of
written court document,â€
name="_ftnref2" title="">[2] but nothing in the record substantiates that
there was any such written agreement that the convictions would not be treated
as strikes. Indeed, it is difficult to
understand how there could have been.
First degree burglary was, at the time of defendant’s plea agreements in
his strike cases, statutorily necessarily defined as a strike offense. (Pen. Code, § 1192.7, subd.
(c)(18).) It is far too late at this
stage of the game to challenge whether those convictions qualify as strikes. As a matter of law, they are strikes.
Defendant’s
constitutional claim is also without merit.
Use of the strike convictions does not offend
punished for the old offenses, but rather for the new offense. (See Witte
v. United States (1995) 515 U.S. 389, 399, [132 L.Ed.2d 351, 115 S.Ct.
2199] [“In repeatedly upholding such recidivism statutes, we have rejected
double jeopardy challenges because the enhanced punishment imposed for the
later offense . . . [is] ‘a stiffened penalty for the latest crime,
which is considered to be an aggravated offense because a repetitive
one.’â€].)
Defendant
is to be commended for improving his life and circumstances while he has been
incarcerated, but he has not presented a legally cognizable argument to
establish that the trial court erred in its ruling.
DISPOSITION
The
order denying defendant’s petition to recall the sentence is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
HOLLENHORST
Acting P. J.
MILLER
J.
name="_ftn1" title=""> [1] The amended information alleged two strike
priors: a conviction in January of 1990
for residential (first degree) burglary, and a conviction in December of 1990
for another residential (first degree) burglary. The amended information also alleged three
prior conviction enhancements: the first
two enhancements were five-year priors (Pen. Code, § 667, subd. (a)(1)),
based on the same convictions as the strike priors. The third prior conviction enhancement
allegation was a one-year prior (Pen. Code, § 667.5), based on a 1994
conviction of felony vandalism, and not remaining free of prison for the
prescribed period of five years. At
sentencing after defendant’s guilty plea on the current underlying offense in
2000, the court denied defendant’s request to exercise its discretion to
dismiss one or more of his strike priors.
(People v.
Cal.4th 497.) On the People’s motion,
however, the trial court did strike the first two prior conviction enhancement
allegations, i.e., the five-year priors based on the same two convictions as
the strikes. The court imposed, but
stayed, a one-year enhancement on the third prior conviction enhancement
allegation. Defendant’s prison
commitment was therefore an indeterminate term of 25 years to life, based on
his three strikes sentence.
name="_ftn2" title=""> [2] Italicized portions denote spelling,
grammatical and punctuation errors in the original.
