Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. DF008912A, L. Bryce Chase, Judge.
Janet Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Gomes, J., and Poochigian, J.
On June 4, 2008, Kern County Sheriff's Deputy Robert Contreras was on patrol in McFarland when he saw appellant, Miguel Garza Gonzalez, and another man walking in a market parking lot toward an alley that ran by the market. After Contreras pulled into the alley, the men immediately turned around and began walking in opposite directions. Contreras contacted Gonzalez, conducted a probation search, and found a knife with a wooden handle and a three-and-a-half inch fixed blade concealed in Gonzalez’s rear pants pocket.
On July 9, 2008, the district attorney filed an information charging Gonzalez with possession of a concealed dirk or dagger (Pen. Code, § 12020, subd. (a)(4)) and four prior prison term enhancements (Pen. Cod, § 667.5, subd. (b)). The information also alleged that Gonzalez had a prior conviction within the meaning of the three strikes law (Pen. Code, § 667, subs. (b)-(i)).
On September 9, 2008, Gonzalez pled no contest to the possession offense and admitted the three strikes law allegations in exchange for the dismissal of the remaining allegations and a stipulated term of 32 months.
On February 4, 2009, Gonzalez filed a Romero motion asking the court to strike his prior strike conviction.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On February 10, 2009, the court denied Gonzalez’s Romero motion and sentenced him to a 32-month term, the mitigated term of 16 months, doubled to 32 months because of Gonzalez’s prior strike conviction.
Gonzalez’s appellate counsel has filed a brief summarizing the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) However, in a letter filed on November 23, 2009, Gonzalez appears to contend the court erred when it denied his Romero motion and that the knife found on him was not concealed when the deputy approached him. We will reject these contentions.
“‘[A] trial court’s failure to dismiss or strike a prior serious and/or violent felony conviction allegation under [Penal Code] section 1385 should be reviewed for abuse of discretion.’ [Citation.] A trial court abuses its discretion when it dismisses a prior conviction solely to accommodate judicial convenience, due to court congestion, because a defendant pleads guilty, or conversely refuses to dismiss because of personal antipathy for the defendant while ‘ignoring “defendant's background,” “the nature of his present offenses,” and other “individualized considerations.”’ [Citation.] In determining whether to dismiss a prior felony conviction, the trial court must ‘consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’ [Citation.]” (People v. Carrasco (2008) 163 Cal.App.4th 978, 992-993.)
Gonzalez was 45 years old when sentenced and had a lengthy criminal record going back to 1979 when, as a juvenile, he was adjudicated for burglary. As an adult, Gonzalez accrued six felony convictions including a 1993 first degree burglary conviction and a 1994 conviction for driving under the influence causing injury. This latter conviction resulted from Gonzalez driving under the influence of alcohol and causing an accident that killed three people and injured three others. Gonzalez also had at least fourteen misdemeanor convictions, including three in 2007, and served three separate prison terms. These circumstances amply support the trial court’s implicit finding that he should not be deemed outside the ambit of the three strikes law and its decision not to strike Gonzalez’s prior conviction.
Moreover, Gonzalez’s claim that the knife found in his possession was not hidden amounts to a challenge on the sufficiency of the evidence to support his conviction. Since such claims are waived by a guilty plea (People v. Lobaugh (1987) 188 Cal.App.3d 780, 785), we conclude this claim is not cognizable on appeal.
Further, following independent review of the record, we find no reasonably arguable factual or legal issues exist.
The judgment is affirmed.