P. v. Varela
Filed 11/12/09 P. v. Varela 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. MANUEL RAY VARELA, Defendant and Appellant. | H034402 (Santa Clara County Super. Ct. No. CC812860) |
Defendant Manuel Ray Varela and two other men took four rolls of cyclone fencing material and a metal gate from a school. Defendant had told the two men that the materials belonged to his brother-in-law and offered to pay the two men for their assistance in transporting the materials. In fact, the materials belonged to the school. Defendant sold the materials to a construction company for $100 and gave one of the men $50. When questioned by the police, defendant admitted that he had picked up the materials and sold them to the construction company, but he claimed that another man named Mario had suggested that defendant pick up the materials and sell them.
Defendant was charged by information with petty theft with a prior (Pen. Code, 666), and it was further alleged that he had suffered six strike prior convictions (Pen. Code, 667, subds. (b)-(i), 1170.12) and had served a prison term for a prior felony conviction (Pen. Code, 667.5, subd. (b)). Five of his six strike prior convictions were for residential burglary, and the sixth was for attempted residential burglary. His prison prior was for petty theft with a prior.
Defendant pleaded no contest to the petty theft with a prior count and admitted the strike prior and prison prior allegations. His plea and admissions were unconditional. He thereafter filed a motion asking the court to exercise its discretion to strike the strike priors. Defendant argued that the strike priors should be stricken because they were old and his current offense was minor. The trial court refused to strike any of the strike priors, but it struck the punishment for the prison prior. The court sentenced defendant to 25 years to life in state prison. Defendant filed a timely notice of appeal challenging only his sentence. He did not seek or obtain a certificate of probable cause.
Defendants appointed appellate counsel filed an opening brief which stated the case and the facts but raised no issues. Defendant was notified of his right to submit written argument on his own behalf, and he responded with a series of letters to this court. After the appeal was submitted for decision, the trial court recalled defendants sentence under Penal Code section 1170, subdivision (d), struck five of the six strike priors, and sentenced defendant to seven years in state prison.
Because defendants appeal challenged only his sentence, and the trial court has vacated that sentence and resentenced defendant, his appeal challenging the original sentence is now moot. We therefore dismiss the appeal.
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Mihara, J.
WE CONCUR:
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Bamattre-Manoukian, Acting P. J.
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McAdams, J.
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