Filed 2/23/18 P. v. Moses CA5








NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,

Plaintiff and Respondent,

v.

SAMMY LEE MOSES,

Defendant and Appellant.


F074828

(Super. Ct. No. F12902329)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge.
Francine R. Tone, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
-ooOoo-
Appointed counsel for defendant Sammy Lee Moses asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to defendant, advising him of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. He responded with a supplemental brief, contending he received ineffective assistance of counsel and an unauthorized sentence. Finding no merit in his contentions and no other arguable issues on appeal, we affirm.
We provide the following brief description of the factual and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On March 25, 2012, officers executed a search warrant at defendant’s residence when he was present. They found ammunition, a rifle, a stun gun, mace, brass knuckles, and a briefcase containing stolen papers. Defendant told the officers he was the maintenance manager at the apartment complex and he sometimes collected items from various apartments. He said he was aware of the stun gun and the mace. The rifle was in a duffle bag he said he was keeping for a relative.
On September 20, 2016, defendant pled no contest to possession of a short-barreled rifle (Pen. Code, § 33215; count 1), possession of a firearm with a prior violent conviction (§ 29900, subd. (a)(1); count 2), possession of ammunition by a prohibited person (§ 30305, subd. (a)(1); count 3), possession of a stun gun (§ 22610, subd. (a); count 4), possession of metal knuckles (§ 21810; count 5), and being a felon in possession of a firearm (§ 29800, subd. (a)(1); count 6). He also admitted having suffered six prior serious felony convictions in 1995 within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and having served one prior prison term (§ 667.5, subd. (b)).
On November 16, 2016, at the sentencing hearing, defendant raised a Romero motion to strike the prior felony convictions on the grounds they were remote, he had not committed any serious or violent felonies since those convictions, and his current offenses were not violent or serious. The trial court denied the motion and sentenced him to 25 years to life on count 2. On counts 1 and 3, the court imposed 25 years to life, but stayed the terms pursuant to section 654. On counts 5 and 6, the court imposed 25 years to life to run concurrently with the term on count 2. On count 4, the court imposed 365 days. The court imposed a one-year enhancement for the prior prison term, plus various fines and fees.
On December 7, 2016, defendant filed a notice of appeal.
DISCUSSION
I. Three Strikes Law
First, defendant appears to contend defense counsel incorrectly made the assessment that defendant fell within the purview of the Three Strikes sentencing scheme due to his six prior felony convictions when he made the Romero motion.
Defendant had admitted prior felony conviction allegations as part of his plea agreement, bringing him under the purview of the Three Strikes law, and thus defense counsel did not err.
II. Proposition 36
Defendant next appears to argue that defense counsel erred by stating the following at sentencing:
“Your Honor, just my brief comments. … I just want to for the record[,] object that my client falls under, should be fall[ing] under Prop[osition] 36 only because under Penal Code Section 1170.2, specifically subdivision capital C, number 3, language is such that it says during the commission of the current offense the defendant used a firearm, was armed with a firearm or deadly weapon or intended to cause GBI to another person.[ ] So I know that I’m aware, Your Honor, that most appellate courts came down against defendant who was just in possession of firearm, ex felon in possession of firearm like my client is and I’m aware of that. However, despite that, I don’t know if any of those cases are up for review by the Supreme Court, so just as a precaution I’m just going to request the court find him falling under Prop[osition] 36 only because this specific language seems there should be underlying offense, and during the underlying offense the defendant had to be armed with a firearm like in this case. But in this case my client, there was no allegation of underlying offense based on charges that were filed on the information. It was just search warrant being executed in my client’s apartment and they find the firearm. There was no underlying offense, separate, independent offense during which my client was armed with a firearm. So I just want to put that on the record.”
Defense counsel’s objection was intended to preserve the issue, which he considered a losing one, for future appeal if the opportunity arose. This was not ineffective representation.
III. Advisement and Admission
The only clear contention defendant raises is that he was not advised during his plea negotiations that the prior felony conviction allegations were part of his plea. He claims that at no point did he admit these allegations, nor were they found true by the trial court. The record clearly refutes this contention. Defendant was advised of the allegations, signed off on them on the plea form, and orally admitted them to the court.
DISPOSITION
The judgment is affirmed.