Opinion
F073563
07-12-2017
THE PEOPLE, Plaintiff and Respondent, v. DAVID ALLEN JONES, Defendant and Appellant.
Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F15900422)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Houry A. Sanderson, Judge. Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Levy, Acting P.J., Gomes, J. and Poochigian, J.
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INTRODUCTION
Appellant David Allen Jones pled no contest to one count of violating Vehicle Code section 10851, subdivision (a), and one count of violating Penal Code section 496d, subdivision (a). He also admitted having a prior strike conviction and serving three prior prison terms. The trial court informed Jones prior to accepting his plea that the indicated sentence would be six years, not the 11 years maximum. At sentencing, the trial court imposed the indicated sentence of six years. Jones appealed and appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. We affirm.
References to code sections are to the Penal Code unless otherwise specified. --------
FACTUAL AND PROCEDURAL SUMMARY
The Fresno County District Attorney filed a two-count information on May 11, 2015, alleging Jones violated Vehicle Code section 10851, subdivision (a), unlawful driving or taking of a vehicle; and section 496d, subdivision (a), receiving or possessing a stolen motor vehicle. It was alleged pursuant to section 666.5 as to both counts that Jones previously suffered a conviction for violating Vehicle Code section 10851 and two convictions for violating section 496d. In addition, the information alleged Jones suffered a prior strike conviction and had served three prior prison terms.
On September 10, 2015, Jones signed and initialed a Felony Advisement, Waiver of Rights, and Plea Form, in which he stated he was pleading no contest to both counts and admitting the prior strike and prior prison term allegations. The form acknowledged that the maximum possible sentence was 11 years.
At the September 10, 2015 plea hearing, the trial court indicated it would strike the three prison priors, but nothing else, and gave an indicated sentence of six years. The trial court asked Jones if he understood the court's position on the strike prior, prison priors, and indicated sentence. Jones acknowledged he understood. The trial court emphasized to Jones that it was not "giving you any promises, any agreements" to anything other than a six-year prison term. Jones acknowledged he understood.
After this exchange, the trial court proceeded to review the signed plea form with Jones; verify he understood his rights and was waiving those rights; and had an adequate opportunity to discuss the plea with counsel. The trial court then accepted Jones's no contest plea to both counts and his admission of the strike prior and three prison priors.
At the March 8, 2016 sentencing hearing, the trial court denied the defense request pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to strike the prior conviction for violating section 422. The trial court struck the three prison priors, as it had indicated it would do at the time Jones entered his no contest plea.
The middle term of three years, doubled to six for the prior strike, was imposed for the count 1 offense; the term for count 2 was stayed pursuant to section 654. The trial court awarded credits of 415 actual, plus 414 conduct, for a total of 829 days. Various fines and fees were imposed. In addition, Jones was informed that upon his release, his driving privileges would be suspended for one year, pursuant to Vehicle Code section 13357.
The abstract of judgment was filed March 8, 2016 and accurately reflects the oral pronouncement of sentence imposed by the trial court.
Counsel for Jones filed a notice of appeal on his behalf on April 15, 2016, indicating the appeal was based on the sentence or other matters occurring after the plea that did not affect the validity of the plea. On April 18, 2016, Jones filed a notice of appeal stating he was challenging the trial court's denial of his Romero motion. No certificate of probable cause was requested or issued.
DISCUSSION
Appellate counsel was appointed on June 17, 2016. A brief pursuant to People v. Wende, supra, 25 Cal.3d 436 was filed on September 8, 2016, and this court's letter to Jones inviting supplemental briefing was issued that same day. No supplemental brief was filed.
In his notice of appeal, Jones apparently contends the trial court abused its discretion in denying his Romero motion to strike his prior conviction. In reviewing the denial of a Romero motion for abuse of discretion, we review the record to determine if the ruling falls " 'outside the bounds of reason.' " (People v. Williams (1998) 17 Cal.4th 148, 162.) The burden is on the party attacking the sentence to show irrationality or arbitrariness. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) Our review of the record discloses no arbitrariness or irrationality and the trial court's denial of the Romero motion is not an abuse of discretion.
After an independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The March 8, 2016 judgment is affirmed.