Opinion
H043232
12-20-2016
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL STERLING DAY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. Nos. F28717 & F28743)
I. INTRODUCTION
Defendant Michael Sterling Day appeals from a final judgment in two criminal actions. Appointed counsel filed an opening brief summarizing the cases but raising no issues. We notified defendant of his right to submit written argument on his own behalf. Defendant responded by filing three handwritten letters dated August 21, 2016, September 9, 2016, and September 27, 2016.
Pursuant to People v. Wende (1979) 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record and find no arguable issue on appeal. Following the California Supreme Court's direction in Kelly, we provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (Id. at p. 110.) We also discuss defendant's contentions and explain why we will affirm the judgment. (Ibid.)
II. BACKGROUND
The factual summaries are drawn from the probation report.
1. Case Number F28717
On April 25, 2015, a City of Santa Cruz police officer responded to the Surf City Inn after receiving an anonymous tip that defendant, who was driving a blue Dodge Durango, was at that location and in possession of narcotics for sale. The officer initiated a traffic stop after observing defendant and woman leave the hotel in the vehicle. He found a bindle of methamphetamine in the ashtray, and a digital scale and packaging material in the vehicle. The woman was in possession of a bindle of heroin and a shard of methamphetamine. Both were arrested, and during the booking process, the woman was found to have 30 grams of methamphetamine hidden in her underwear and vagina. Defendant was in possession of $282 in cash.
2. Case Number F28743
On March 13, 2015, a City of Capitola police officer was dispatched to the Department of Motor Vehicles to investigate possible drug activity, having been advised that defendant was seen handling a black box under the hood of a blue Dodge Durango. The vehicle was located at a nearby pharmacy, and a police dog was drawn to the passenger side front grill area. After detaining defendant, who was on probation with search terms, officers found a black box under the hood of the Durango containing two syringes and approximately 40 grams of methamphetamine. Two methamphetamine pipes were found in the vehicle, and defendant was in possession of $280 cash. Defendant admitted having a methamphetamine addiction.
B. TRIAL COURT PROCEEDINGS
Defendant was charged in separate cases with possession of methamphetamine for sale, in violation of Health and Safety Code section 11378. Each charging document alleged six prior prison terms under Penal Code section 667.5, subdivision (b), as well as a 1995 strike conviction for second degree robbery (Pen. Code, § 212.5, subd. (c)) within the meaning of Penal Code section 667, subdivision (b).
Defendant entered open guilty pleas and admitted the allegations in both cases. At sentencing, the trial court exercised its discretion under Penal Code section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, dismissing the prior strike allegation. It also struck the punishment for four of the six prior prison term allegations, reasoning that "today they might be misdemeanors." Defendant was sentenced to the middle term of two years in F28717 and a consecutive eight-month term in F28743, plus two years for the prior prison terms, for an aggregate term of four years, eight months.
In case No. F28717, the court imposed a $1,200 restitution fund fine (Pen. Code, § 1202.4, subd. (b)), a $1,200 suspended parole revocation restitution fine (Pen. Code, § 1202.45), a $40 court operations assessment (Pen. Code, § 1465.8, subd. (a)(1)), a $30 court facilities assessment (Gov. Code, § 70373), and a $50 criminal laboratory analysis fee (Health & Saf. Code, § 11372.5). Defendant received 209 days presentence custody credits.
Penalty assessments totaling $155 were added to the laboratory analysis fee. (Pen. Code, § 1464, subd. (a)(1) ($50); Pen. Code, § 1465.7 ($10); Gov. Code, § 70372 ($25); Gov. Code, §76000 ($35); Gov. Code, § 76000.5, subd. (a)(1) ($10); Gov. Code, § 76104.6, subd. (a)(1) ($5); Gov. Code, § 76104.7, subd. (a) ($20)).
In case No. F28743, the court imposed a $300 restitution fund fine and a $300 suspended parole revocation restitution fine. As in case No. F28717, the court imposed a $40 court operations assessment, a $30 court facilities assessment, and a criminal laboratory analysis fee and penalty assessments totaling $205.
III. WENDE ANALYSIS
Having carefully reviewed the entire record, we conclude that there are no arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d at pp. 441-443.)
Defendant's August 21 letter concerns misdemeanor charges that are unrelated to the felony cases on appeal. His letters dated September 9 and 27 argue that his prison prior sentencing enhancements are unlawful because he was prison-free for five years after serving sentences for those convictions. Specifically, he argues that he falls under the "washout" exception because the felony convictions he suffered following his 1995 conviction and prison term were "dropped to misdemeanors" and "are now misdemeanors."
The record contains no support for defendant's claim that any of his convictions had been reduced to misdemeanors at the time of sentencing in this case. Defendant's sentencing memorandum explained that several of his prison priors "appear to be eligible for reduction under Proposition 47," and that he "is in the process of petitioning the courts so that these cases can be reduced under [P]roposition 47." At sentencing, the court did not reduce defendant's convictions to misdemeanors; it merely commented that some of them "might be" misdemeanors today.
The trial court imposed one-year enhancements for prison terms arising from a 1995 second degree robbery conviction (Pen. Code, § 212.5, subd. (c)), and a 2007 domestic violence conviction (Pen. Code, § 273.5). The probation report shows defendant received probation for the robbery conviction, but his probation was revoked and he was sentenced to a three-year prison term in 1998. Defendant received a 24-month prison sentence for the 2007 domestic violence conviction. In 2009 and 2011 defendant suffered new felony petty theft convictions under Penal Code section 666. Accordingly, he did not qualify for the prison prior washout exception because he had failed to "remain[] free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170[.]" (Pen. Code, § 667.5, subd. (b); People v. Fielder (2004) 114 Cal.App.4th 1221, 1229 ["Both prongs of the rule, lack of prison time and no commission of a crime leading to a felony conviction for a five-year period, are needed for the 'washout' rule to apply."].)
In the cases for which one-year enhancements were not imposed, defendant was convicted of two felony offenses in 2001—petty theft with a prior (Pen. Code, § 666) and possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a))—and sentenced to a 16-month prison term. In 2005, he was convicted of four felonies—three second degree burglaries (Pen Code, § 460, subd. (b)) and forgery (Pen. Code, § 470, subd. (d))—resulting in a two-year prison term.
We express no opinion as to whether defendant may be eligible for resentencing on the prison prior allegations should the trial court reclassify as misdemeanors the felony convictions which disqualified him from the washout exception.
IV. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Rushing, P.J. /s/_________ Walsh, J.