Opinion
G055961
07-27-2018
THE PEOPLE, Plaintiff and Respondent, v. RENE ALONZO BARAJAS, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CF1813) OPINION Appeal from a judgment of the Superior Court of Orange County, Jeannie M. Joseph, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
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INTRODUCTION
A jury found Rene Alonzo Barajas guilty of possession of methamphetamine for sale and also found true allegations Barajas had suffered three prior serious or violent felony convictions. The trial court sentenced Barajas to 32 months in prison by imposing the lower term on the possession of methamphetamine for sale offense and doubling it pursuant to Penal Code section 667, subdivision (e)(1).
In People v. Barajas (G054441, Oct. 24, 2017) (nonpub. opn.), we affirmed the judgment of conviction but remanded for resentencing because we concluded the trial court was not aware of its discretion to strike Barajas's prior strike convictions for purposes of sentencing. On remand, the trial court held a new sentencing hearing at which it declined to dismiss the strike allegations and reimposed the same sentence of 32 months.
We appointed counsel to represent Barajas on this appeal. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), setting forth the facts of the case and requesting that we review the entire record. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), appellate counsel suggested we consider a certain issue addressed post. This court provided Barajas 30 days to file written argument on his own behalf; he has not done so.
We have examined the entire record and appellate counsel's Wende/Anders brief; we find no arguable issue. (Wende, supra, 25 Cal.3d 436.) We therefore affirm.
BACKGROUND
Barajas was charged in an information with one count of possession of methamphetamine for sale in violation of Health and Safety Code section 11378 and one count of maintaining a place for selling or using methamphetamine in violation of Health and Safety Code section 11366. The information alleged, pursuant to Penal Code section 667, subdivisions (d) and (e)(2)(A) and section 1170.12, subdivisions (b) and (c)(2)(A), that Barajas suffered three prior serious and violent felony convictions and adjudications in 1997.
At trial, evidence was presented that on the morning of July 8, 2016, three Santa Ana police officers made contact with Barajas and his girlfriend, who were asleep at their campsite in the Civic Center area of downtown Santa Ana. After the police informed them they had to clean up their things, Barajas and his girlfriend consented to a search of their property. During that search, the officers found a backpack containing 11.4 grams of methamphetamine and 64 empty black unused "film container-style canisters" in a black reusable grocery bag in the bedding area of the campsite. One of the officers testified regarding Barajas "[h]aving a bunch of unused canisters," noting "the only reason that someone usually would have that is because they're using it to distribute and to sell the narcotics." She further testified that, "[b]ased off of the numerous unused packaging canisters and also the high quantity of methamphetamine," it was her opinion Barajas possessed the narcotics and packaging material for the sales of narcotics.
The jury found Barajas guilty of possession of methamphetamine for sale, but not guilty of maintaining a place for selling or using methamphetamine. The jury also found true the prior conviction allegations. The trial court sentenced Barajas to 32 months in prison by imposing the lower term on the possession of methamphetamine for sale offense and doubling it pursuant to Penal Code section 667, subdivision (e)(1) for the prior strike convictions. Barajas appealed.
Barajas's counsel filed a Wende brief setting forth the facts of the case and requesting that we review the entire record. Pursuant to Anders, supra, 386 U.S. 738, appellate counsel suggested we consider whether the trial court was aware of its discretion to strike the prior strikes for purposes of sentencing. Upon our independent review of the record as required by Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, we identified the same issue raised in appellate counsel's Wende brief as an arguable issue which, if resolved favorably to Barajas, would result in our remanding the matter for resentencing. We issued an order asking the parties to file supplemental briefs addressing the issue and Barajas's appellate counsel and the Attorney General did so.
In our unpublished prior opinion, People v. Barajas, supra, G054441, we held that the record showed the court was not aware of its discretion to dismiss the prior strike convictions and remanded the matter to the trial court for resentencing to enable the court to exercise that discretion. We found no other arguable issues in the record and affirmed the judgment of conviction.
At the resentencing hearing following remand, the trial court stated: "So we're here today for a re-sentencing because when I sentenced you before, I did not use the correct language showing that I knew I had discretion on what I sentenced you to." The court continued, "I do understand I have discretion to strike those prior strikes under the law, but in my discretion, I chose not to because I thought 32 months was the right amount of time given all the factors, both aggravating and mitigating factors, I believe, in this case. So I would use my discretion to [im]pose the same sentence, but I'll hear from both parties." After Barajas and the prosecutor presented their arguments, the trial court exercised its discretion to impose the same 32-month sentence on Barajas. Barajas again appealed.
ANALYSIS OF POTENTIAL ISSUE
In the Wende/Anders brief filed in the instant appeal, appellate counsel suggests we consider whether the trial court abused its discretion by declining to dismiss the prior strike convictions at the resentencing hearing. It is well established a trial court has discretion under Penal Code section 1385, subdivision (a) to dismiss a strike sua sponte. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504 [discretion to strike prior felony conviction allegations in Three Strikes case].) In deciding whether to exercise that discretion, the court must consider the nature and circumstances of the present and previous felony convictions, as well as the defendant's background, character, and prospects, to determine whether the defendant is outside the spirit of the "Three Strikes" law. (People v. Carmony (2004) 33 Cal.4th 367, 377.)
Here, at the resentencing hearing, the trial court expressly exercised its discretion in declining to dismiss Barajas's prior strikes for purposes of resentencing based on the court's consideration of the nature and circumstances of his present and prior felony convictions, as well as his background, character, and prospects, to determine whether he was outside the spirit of the Three Strikes law. The court stated: "I wanted you to have some punishment because I thought you were convicted of the crime and deserving of some punishment. I was hoping it would also maybe give you some help with your drug problem, but I did have to consider that it was a fair amount of drugs here. You did have a very long criminal history. I think there were 13 misdemeanors and six felonies. You were on informal probation when the offense was committed, and you hadn't been doing very well on probation, so those are some of the aggravating circumstances. [¶] I thought some of the mitigating ones were—wasn't the largest amount, it wasn't kilos of drugs, and it—there was addiction involved in it, so I certainly understood that. And— [¶] . . . [¶] . . . But because of that, that's what I came up with. Instead of six years or longer or something like that, I came up with what I thought was a sentence that was appropriate. It was one that would reflect punishment and also hopefully give you some rehabilitation, take you out of any drug addiction by getting you out of that situation, but not so long that you couldn't get back out and have a future 'cause I do want that for you, so I am going to use my discretion. [¶] . . . [¶] . . . And still take the low end based on all of that, and I'm still going to apply the strikes and double it, but we're still at 32 months."
On this record, we cannot conclude the trial court abused its discretion by refusing to strike Barajas's prior conviction allegations. We have reviewed the record in accordance with our obligations under Wende and Anders, and we find no arguable issues on appeal. (People v. Kelly (2006) 40 Cal.4th 106, 110.)
DISPOSITION
The judgment is affirmed.
FYBEL, J. WE CONCUR: O'LEARY, P. J. THOMPSON, J.