Opinion
F075188
01-30-2018
THE PEOPLE, Plaintiff and Respondent, v. RICHARD ALLEN MCVAY, Defendant and Appellant.
Francine R. Tone, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RF007620A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Kenneth G. Pritchard, Judge. Francine R. Tone, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Levy, Acting P.J., Gomes, J., and Detjen, J.
-ooOoo-
Appointed counsel for defendant Richard Allen McVay asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) We sent a letter to defendant, advising him of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. He responded with a supplemental brief, in which he contends: (1) the trial court erred in denying defense counsel's request for time to speak to defendant in private while in the courtroom because of his hearing impairment; (2) defense counsel may not have investigated his case adequately; (3) the trial judge and the district attorney were prejudiced against defendant based on his prior conviction and lack of money to hire counsel; and (4) the trial court erred in denying his Romero motion. Having reviewed the record and finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
We provide the following brief description of the factual and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
During a compliance check pursuant to Penal Code section 290, defendant was found to be living in a residence without having registered a change of address
All statutory references are to the Penal Code.
On January 12, 2017, defendant pled no contest to felony failing to register a change of address due to his requirement to register as a sex offender (§§ 290.013, subd. (a), 290.018.) He admitted having suffered a prior felony conviction within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The trial court struck a prior prison term allegation (§ 667.5, subd. (b)). According to the plea agreement, defendant would be sentenced to the low term of 16 months, doubled pursuant to the Three Strikes law, for a total of 32 months in prison, and if the court agreed to grant a Romero motion to strike the prior felony conviction, defendant would be sentenced to the midterm of two years.
On January 19, 2017, defendant filed a Romero motion.
On February 9, 2017, the prosecution filed an opposition. That day, the trial court heard argument and denied the motion. The court sentenced defendant to 32 months in prison, and imposed various fines and fees.
On February 10, 2017, defendant filed a notice of appeal.
DISCUSSION
I. Request to Speak Privately
The record demonstrates that the trial court did grant defense counsel's request at the plea hearing to speak privately with defendant due to his hearing impairment. The following occurred while the court was taking defendant's plea:
"[DEFENSE COUNSEL]: Your Honor, could I step out in the hallway really, please? I'd like to ask him a question, and he is hearing-impaired.
"THE COURT: Do you mind?
"BAILIFF: (No audible response.)
"[DEFENSE COUNSEL]: Thank you.
"(Recess in proceedings.)
"[DEFENSE COUNSEL]: Your Honor, could we have a sidebar, please?
"THE COURT: Yes, in chambers."
After the sidebar, the court began again and took the plea from the beginning.
In the record before us, the trial court granted defense counsel's request to speak privately with defendant. We can find no other request by defense counsel (or defendant) for an opportunity to speak in private. If, however, other evidence exists outside of the appellate record, defendant may seek to present that evidence by way of writ of habeas corpus.
II. & III. Failure to Investigate & Prejudice
We see nothing in the record to support the conclusion that defense counsel failed to investigate, nor do we see anything to suggest that either the trial judge or the prosecutor were prejudiced against defendant for any reason. Again, if such evidence exists outside the appellate record, defendant may seek to present that evidence by way of writ of habeas corpus. IV. Romero Motion
Defendant argues that the trial court should have struck the prior felony conviction allegation because it struck the prior prison term allegation that arose from that conviction. He says he does not want two strikes on his record.
A. Law
Section 1385 grants trial courts the discretion to dismiss a prior felony conviction if the dismissal is in furtherance of justice. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.) A defendant bears the burden of clearly showing the trial court's decision not to do so was arbitrary or irrational. Absent such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives. (Carmony, supra, at pp. 376-377.)
A defendant's request for this type of leniency is commonly referred to as a "Romero motion," although defendants do not actually have a right to make motions under section 1385, subdivision (a). (People v. Carmony (2004) 33 Cal.4th 367, 375, 379 (Carmony).) --------
" 'A court's discretion to strike [or vacate] prior felony conviction allegations [or findings] in furtherance of justice is limited. Its exercise must proceed in strict compliance with ... section 1385[, subdivision] (a).' " (People v. Williams (1998) 17 Cal.4th 148, 158.) The Three Strikes law "was intended to restrict courts' discretion in sentencing repeat offenders." (Romero, supra, 13 Cal.4th at p. 528; People v. Garcia (1999) 20 Cal.4th 490, 501 ["a primary purpose of the Three Strikes law was to restrict judicial discretion"].) The Three Strikes law establishes " 'a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike,' " unless the sentencing court finds a reason for making an exception to this rule. (Carmony, supra, 33 Cal.4th at p. 377.) There are "stringent standards that sentencing courts must follow in order to find such an exception." (Ibid.) In order to dismiss a prior felony conviction, "the court in question must consider whether, in light of the nature and circumstances of [the defendant's] 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." (People v. Williams, supra, at p. 161.)
"[A] trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]. Moreover, 'the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce[] an "arbitrary, capricious or patently absurd" result' under the specific facts of a particular case. [Citation.] [¶] But '[i]t is not enough to show that reasonable people might disagree about whether to strike one or more' prior conviction allegations. [Citation.] ... Because the circumstances must be 'extraordinary ... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary. Of course, in such an extraordinary case—where the relevant factors ... manifestly support the striking of a prior conviction and no reasonable minds could differ—the failure to strike would constitute an abuse of discretion." (Carmony, supra, 33 Cal.4th at p. 378.)
In this case, defense counsel argued that defendant's criminal history was minimal, and although he had parole violations, his remands to custody resulting from those violations were for short periods of time, such as 30 or 40 days. Furthermore, his current offense was not a violent felony. The trial court responded that it believed it was the frequency of parole violations, not the length of the resulting time in custody, that the court should consider. The court noted defendant committed the prior in 2009, violated parole in 2013 and 2016, and committed the current offense in 2017. The court denied the motion, stating:
"[Defendant], the Court's position is as follows on the matter: whatever the nature of the parole violations, while you were on parole there were two violations. As a starting point, the Court would normally assume that most people would not have violations of parole because of the fear of being put back into custody. [¶] And then within a matter of months, maybe only weeks after you completed parole, we have a new felony violation here. So I am going to deny the Romero request."
On this record, we cannot call the trial court's denial of the motion an abuse of discretion, even if reasonable people might differ as to whether defendant's criminal history brought him within the spirit of the Three Strikes scheme. The court's decision was not arbitrary, capricious, or patently absurd.
DISPOSITION
The judgment is affirmed.