P. v. McBurney

Filed 2/16/10 P. v. McBurney CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Counsel appointed for defendant David McBurney has asked this court to independently examine the record in accordance with People v. Wende(1979) 25 Cal.3d 436, to determine if there are any arguable issues that require briefing. Defendant was apprised of his right to file a supplemental brief, but he did not do so. We have conducted our review, conclude there are no arguable issues, and affirm.

Our examination[1] reveals that on June 21, 2008, a Santa Rosa police officer conducted a traffic stop after determining that a cars registration was expired, even though it displayed a valid registration tag on its license plate. Defendant, who was a passenger in the car, was sweating profusely and avoided looking in the officers direction. When asked by the officer if he was on parole, defendant admitted that he was, and also admitted that he had marijuana and a small knife in his pocket. Defendant claimed he had not used a controlled substance either that day or the day before, but the officer nevertheless determined that he was under the influence of a controlled substance. Defendant then admitted he had injected methamphetamine, explaining, I used so much the other day it made me sick. I crashed my bike, my girlfriend kicked me out, and I went on a three-day binge. Defendant was placed under arrest. A search of defendant uncovered various items of jewelry which were subsequently identified as having been stolen during a residential burglary three days earlier.

Defendant was charged with felony possession of stolen property (Pen. Code,  496, subd. (a)) and misdemeanor methamphetamine use (Health & Saf. Code, 11550, subd. (a)). The complaint also alleged a prior strike conviction (Pen. Code, 1170.12) and two prior prison terms (Pen. Code,  667.5, subd. (b)).

On July 14, 2008, defendant pleaded not guilty to the charges and denied the special allegations. The following month, while awaiting a preliminary hearing, defendant was again arrested, this time on suspicion of auto theft and auto burglary (no. 544535).

On November 12, 2008, pursuant to a negotiated plea agreement, defendant pleaded guilty to receiving stolen property and admitted the prior strike. In exchange, it was agreed defendant would receive a maximum prison sentence of six years, but that the sentence would be suspended and defendant granted probation. As a condition of probation, defendant was to complete the Delancy Street Program.

At a sentencing hearing on January 7, 2009, the trial court expressed reservations about granting probation given defendants prior strike, and continued sentencing to allow defendant to file a motion to strike the prior strike pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

Defendant filed his Romero motion on January 22, 2009. It detailed the circumstances of defendants difficult childhood, including the death of his father when defendant was 13, his mothers numerous boyfriends, the abundant drug use in the house during his pre-teen years, and the sexual and physical abuse inflicted by one of his mothers boyfriends. It was in this environment that defendant developed a drug addiction at a young age.

Defendant acknowledged his lengthy criminal history, but argued that the crimessuch as possession of stolen property, burglary, and auto theftwere not violent and were committed for the sole purpose of obtaining money to support his drug habit. As a non-violent drug offender and addict, defendant argued, the Delancy Street Program offered him the best opportunity in turning his life around.

The People opposed defendants motion on the ground that defendant was a habitual offender who fell squarely within the intent of the Three Strikes law. They provided further details of defendants lengthy criminal history, listing 14 occasions between 1989 and 2005 on which defendant had been convicted of various crimes. They also explained that defendant had been granted probation numerous times, but had re‑offended while on probation; had been paroled from state prison several times, but had re-offended while on parole; and had previously been offered an opportunity to participate in a residential drug treatment program, but left the program without completing it and was again arrested. In the absence of any indication that defendant was committed to changing the criminal lifestyle he had lived for all of his adult life, the People contended that dismissal of defendants prior strike conviction would constitute an abuse of discretion.

In reply, defendant represented to the court that since being released from custody in both of his pending cases, he had attended Alcoholics Anonymous and Narcotics Anonymous meetings and was committed to leading a sober life style. A lengthy hearing on the motion followed, and at the conclusion, the court denied the motion.

At the March 5, 2009 sentencing hearing, the People urged the court to sentence defendant to six yearsor double the three-year upper teamin state prison, as recommended by the probation department. The court denied probation and sentenced defendant to four years in state prison, comprised of the two year midterm doubled per Penal Code section 1170.12. Defendant was also ordered to pay restitution fines and a $20 court security fee, and to make restitution to the victim in an amount to be determined. The case involving the auto theft was dismissed with a Harvey[2]waiver.

This timely appeal followed.

The scope of reviewable issues on appeal after a guilty plea is restricted to matters based on constitutional, jurisdictional, or other grounds going to the legality of the proceedings leading to the plea; guilt or innocence are not included. (People v. DeVaughn (1977) 18 Cal.3d 889, 895-896.)

Defendants change of plea complied with Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d 122.

The trial court did not abuse its discretion in denying defendants Romero motion.

Defendant was represented by competent counsel who guarded his rights and interests.

The sentence imposed is authorized by law.

Our independent review having found no arguable issues that require briefing, the judgment of conviction is affirmed.

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Haerle, J.

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[1] Because defendant pleaded guilty and was sentenced pursuant to a negotiated plea agreement, we derive these facts from a felony presentence report prepared for the March 5, 2009 sentencing hearing.

[2]People v. Harvey(1979) 25 Cal.3d 754.