Opinion
C086659
10-29-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL EARL ROBERTS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15F07627)
Appointed counsel for defendant Michael Earl Roberts filed an opening brief setting forth the facts of the case and asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 43.) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.
BACKGROUND
Defendant was charged with attempted murder of his wife (Pen. Code, § 664/187, subd. (a), count one), unlawful infliction of corporal injury resulting in a traumatic condition to a spouse (§ 273.5, subd. (a), count two), and assault with a deadly weapon (§ 245, subd. (a)(1), count three). As to all counts, it was alleged that defendant personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)); as to counts one and two it was alleged that defendant personally used a knife (§ 12022, subd. (b)(1)).
Undesignated statutory references are to the Penal Code. --------
At the preliminary hearing, the People voiced their intent to prove additional crimes including criminal threats (§ 422), and, in addition to holding defendant to answer on the original counts and allegations, the trial court found sufficient evidence to support the proposed threats charge. In January 2018 the People filed an amended information to add criminal threats with personal use of a deadly weapon (§§ 422, 12022, subd. (b)(1)) and two prior serious felony/strike allegations for a 1976 voluntary manslaughter and a 2006 assault with a deadly weapon (§§ 667, subds. (a), (b)-(i), 1170.12).
Defense counsel filed a pretrial motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 requesting dismissal of one or both of defendant's strike priors. After considering the parties' filings and hearing arguments from counsel, the trial court denied the motion, finding defendant did not fall outside the spirit of the three strikes law. In ruling, the court considered the constitutional rights of defendant, the interests of society, defendant's age and prospects, the nature and circumstances of the prior strikes, the remoteness of the strikes, whether the prior offenses involved violence or the use of a weapon (they did), whether they occurred in a single aberrant period (they did not), whether the prior convictions arose out of the same act (they did not), and conduct of the victims of the prior offenses.
In January 2018 defendant pleaded no contest to attempted murder and admitted the two prior strike convictions in exchange for dismissal of the remaining counts and allegations and a 25-year-to-life sentence. The factual basis was that on December 15, 2015, defendant attempted to murder his wife by stabbing her eight to 10 times with a hunting knife and also that defendant had suffered the 1976 and 2006 prior convictions as charged.
Prior to sentencing, defense counsel orally moved the trial court to reconsider his Romero motion. The court declined to do so, stating it had not received any new information that would change its analysis or ruling. It then sentenced defendant to a term of 25 years to life in prison and dismissed the remaining counts in the interest of justice. The court awarded defendant 808 days of actual credit and 121 days of conduct credit for a total of 929 days of presentence credit, imposed various fines and fees, and ordered restitution. Defendant timely appealed.
DISCUSSION
Counsel filed an opening brief setting forth the facts of the case and requesting that this court review the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we have received no communication from defendant.
Having undertaken an examination of the entire record pursuant to Wende, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Blease, Acting P. J. /s/_________
Butz, J.