Opinion
A146217
09-27-2017
THE PEOPLE, Plaintiff and Respondent, v. JASON PAUL BIENVENU, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. Nos. SCUKCRCR-11-17706; SCUKCRCR-15-81865)
Appellant Jason Paul Bienvenu appeals from an eight-year, eight-month state prison sentence he received after the court found him to be in violation of probation in Case No. SCUKCRCR-11-17706 (hereafter Case No. 11-17706) and probation was terminated, and appellant pleaded no contest to two counts in Case No. SCUKCRCR-15-81865 (hereafter Case No.15-81865). Appellant's counsel has filed an opening brief in which no issues are raised and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel submitted a declaration stating that she notified appellant that no issues were being raised by counsel on appeal and that an independent review under Wende instead was being requested. Counsel also advised appellant of his right personally to file a supplemental brief raising any issues he chooses to bring to this court's attention. No supplemental brief has been filed by appellant personally.
Appellant actually pleaded no contest to three counts, but at sentencing the People advised the court it was allowing appellant to withdraw his plea as to one count and enter a not guilty plea; the People further agreed to dismiss that count with a Harvey waiver. (See People v. Harvey (1979) 25 Cal.3d 754, 758-759.)
In Case No.11-17706, appellant was originally charged by felony complaint filed on June 10, 2011, by the Mendocino County District Attorney with one count of felony grand theft. (Pen.Code, §487, subd. (a).) The complaint also alleged that appellant had served three prior prison terms (§ 667.5, subd. (b)) and had been convicted of a strike prior for a first degree burglary occurring in 1989 (§§ 1170.12, 667). Subsequently, the complaint was amended to reflect that the amount of the stolen items was over $950. Appellant pleaded guilty and admitted the special allegations. After granting appellant's Romero motion, the court dismissed the prior strike, and sentenced appellant to the aggravated term of three years for the grand theft charge (§ 487, subd. (a)), plus a consecutive one year term for each prison prior. The court suspended execution of appellant's sentence, and placed appellant on probation for five years, with various conditions and fees.
All further statutory references are to the Penal Code, unless indicated otherwise.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On March 9, 2014, appellant violated probation by being drunk in public and under the influence of a controlled substance in violation of Health and Safety Code section 11550, subdivision (a). Appellant admitted this violation. The court revoked and reinstated probation, issuing an order that appellant serve an additional 60 days in county jail and that he complete the Ford Street vocational, rehabilitation, and treatment program.
Pursuant to People v. Johnson (1978) 82 Cal.App.3d 183, 188-189, appellant waived 153 accrued custody credits to permit the imposition of the additional time in county jail.
On May 29, 2015, appellant petitioned the court for resentencing under Proposition 47 (§ 1170.18), seeking to have his felony grand theft offense reduced to a misdemeanor. The court denied the request because the value of the stolen items exceeded the $950 limit for Proposition 47 relief.
Appellant stole the following items from Native American land located at Round Valley Natural Resources: two fence posts ($13), a radiator from a tractor ($500), a game camera ($700), and 27.1 gallons of tractor fuel ($108); barbed wire fencing of undisclosed value was also taken. --------
While appellant was still on probation in Case No.11-17706, a new information was filed on June 26, 2015, in Case No.15-81865, charging appellant with driving in a direction opposite traffic while evading a police officer (Veh. Code, § 2800.4); reckless driving while evading a police officer (Veh. Code, § 2800.2, subd. (a)), two counts of second degree burglary of a motor vehicle (§§ 459, 460, subd. (b)), and being a felon in possession of a firearm (§ 29800, subd. (a)(1)). Two strike priors were also alleged (§§ 667, 1170.12). Additionally, a petition to revoke appellant's probation in Case No. 11-17706 was filed, alleging the new offenses in Case No. 15-81865, as well as for testing positive for methamphetamine on two occasions, and failing to attend his treatment program.
On August 5, 2015, appellant completed a written plea waiver form in Case No. 15-81865 and entered no contest pleas to one of the Vehicle Code charges (Veh. Code, § 2800.4), and two counts of second degree burglary of a motor vehicle (§§ 459, 460, subd.(b)), and admitted two separate strike priors; the other charges were dismissed. Case No. 15-81865 provided the basis for the court to find appellant in violation of probation in Case No. 11-17706 and the basis to permanently revoke it.
At sentencing on September 1, 2015, the prosecution moved to dismiss one of the burglary of a motor vehicle counts. The court deemed Case No. 11-17706 to be the principal case, lifted the stay, and ordered the previously imposed six-year term executed. The court ordered sixteen months in Case No. 15-81865, eight months to run consecutive on the two counts, doubled because of the strike priors. The total term was thus eight years, eight months in state prison. The restitution fund fine of $1,200 was also reimposed. The court ordered appellant 952 days of presentence credits, minus the 153 days previously waived, for a total of 799 days presentence custody credits.
Upon our independent review of the record we conclude there are no meritorious issues to be argued, or that require further briefing on appeal. We discern no error in the sentencing or plea dispositions. The revocation of probation in Case No. 11-17706, and the sentencing choices made by the trial court in both cases were consistent with the plea negotiated, they were supported by substantial evidence, and were well within the discretion of the trial court. Also, there was no error in denying Proposition 47 relief in Case No. 11-17706. And, the restitution fines and penalties imposed were supported by the law and facts. At all times appellant was represented by counsel.
DISPOSITION
The judgment is affirmed.
/s/_________
REARDON, ACTING P. J. We concur: /s/_________
RIVERA, J. /s/_________
STREETER, J.