P. v. Reyes

 

 

 

 

 

Filed 1/22/14  P.
v. Reyes CA2/6

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

 

SECOND
APPELLATE DISTRICT

 

DIVISION
SIX

 

 
>

THE PEOPLE,       Plaintiff and Respondent,   v.   JAMES MITCHELL REYES,       Defendant and Appellant.

2d Crim. No. B250033 (Super. Ct. No. 2013001815) (href="http://www.fearnotlaw.com/">Ventura County)

 

 

                        James
Mitchell Reyes appeals the judgment entered after he pled guilty to unlawfully
driving or taking a vehicle with a prior vehicle theft conviction (Veh. Code, § 10851,
subd. (a); Pen. Code,href="#_ftn1"
name="_ftnref1" title="">^[1] § 666.5), driving while intoxicated or
with a blood alcohol level of 0.08 or more (Veh. Code, § 23152, subds. (a),
(b)), and driving with a suspended license (Veh. Code, § 14601.2, subd.
(a)).  Appellant also admitted
allegations that he had suffered a prior conviction for robbery (§ 211),
which qualifies as a strike (§§ 667, 1170.12), and had served five prior
prison terms (§ 667.5, subd. (b)).  The
trial court denied appellant's Romerohref="#_ftn2" name="_ftnref2" title="">^[2]> motion,
struck the prior prison term allegations, and sentenced him to four years in
state prison.

                        Because
appellant pled guilty prior to trial, the relevant facts are derived from the href="http://www.fearnotlaw.com/">preliminary hearing transcript.  Someone stole a car from a gas station while
its owner was paying for gas.  Later that
day, appellant was pulled over while driving the car erratically.  Appellant was arrested after a preliminary alcohol-screening
sample revealed he had a 0.24 blood alcohol level.

                        We
appointed counsel to represent appellant in this appeal.  After examining the record, counsel filed an href="http://www.fearnotlaw.com/">opening brief raising no issues.  On December 9, appellant was advised that he
had 30 days to personally submit any contentions he wished us to consider.  In a timely response, appellant contends the
court erred in denying his Romero motion
and his request to be placed in an alcohol treatment program.

                        A trial
court has the discretion to strike a prior conviction for purposes of
sentencing if the defendant falls outside the spirit of the href="http://www.mcmillanlaw.us/">three strikes law.  (§ 1385; Romero, supra, 13 Cal.4th at pp. 529-530.)  In deciding whether to exercise its
discretion, the court "must consider whether, in light of the href="http://www.sandiegohealthdirectory.com/">nature and circumstances of
[the defendant's] present felonies and prior serious and/or violent felony
convictions, and the particulars of his background, character, and prospects,
the defendant may be deemed outside the scheme's spirit, in whole or in part,
and hence should be treated as though he had not previously been convicted of
one or more serious and/or violent felonies."  (href="http://www.fearnotlaw.com/">People v. Williams (1998) 17 Cal.4th
148, 161.)  The refusal to strike a prior
conviction is likely to be considered an abuse of discretion only in extraordinary
cases where the trial court was unaware of its discretion, or considered
impermissible factors.  (>People v. Carmony (2004) 33 Cal.4th 367,
378.)  In the absence of such a showing,
we presume the court acted to achieve the legitimate sentencing objectives and
will not set aside its discretionary href="http://www.sandiegohealthdirectory.com/">determination to impose a
particular sentence.  (>People v. Superior Court (Alvarez)
(1997) 14 Cal.4th 968, 977-978.)

                        The
court did not abuse its discretion in denying appellant's motion to strike his
2000 robbery conviction under Romero.  In denying the motion, the court reasoned
"this was an auto theft when somebody was highly intoxicated.  But for luck we could be here dealing with an
entirely different and much more tragic situation.  And lucky that didn't happen.  But it's still very serious felony conduct
from somebody who's had many opportunities to correct the behavior before
now."  The court also noted it was
exercising its discretion to dismiss all five of appellant's prison priors and
sentence him to the low term.  In light
of appellant's lengthy criminal history and the seriousness of the current
offenses, the court did not abuse its discretion in concluding that neither the
nature of the offender nor the nature of the offenses indicated appellant fell
outside the spirit of the three strikes law. 
For the same reason, the court did not abuse its discretion in denying
appellant's request that he be allowed to participate in a treatment program in
lieu of a prison sentence.

                        We have
reviewed the entire record and are satisfied that appellant's attorney has
fully complied with his responsibilities and that no arguable issues
exist.  (People v. Kelly (2006) 40 Cal.4th 106, 126; People v. Wende (1979) 25 Cal.3d 436, 443.)

                        The
judgment is affirmed.

                        NOT
TO BE PUBLISHED.

 

 

 

                                                                        PERREN,
J.

 

 

We concur:

 

 

 

                        GILBERT,
P. J.

 

 

 

                        YEGAN, J.

 

>

Matthew Guasco, Judge

 

Superior Court County of Ventura

 

______________________________

 

 

                        California
Appellate Project, Jonathan B Steiner, Richard B. Lennon, under appointment by
the Court of Appeal; James M. Reyes, in pro. per., for Defendant and Appellant.

                        No
appearance for Plaintiff and Respondent.