Opinion
C089153
01-31-2020
THE PEOPLE, Plaintiff and Respondent, v. NORMAN CARL MIEGER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19F48)
Appointed counsel for defendant Norman Carl Mieger asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant filed a supplemental brief. Having reviewed the record and considered defendant's supplemental brief, we will direct the trial court to correct a clerical error in the abstract of judgment. Finding no other arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.
I
In 1996, defendant was convicted of committing a lewd or lascivious act upon a child under the age of 14 years. (Pen. Code, § 288, subd. (a).) Because of that conviction, defendant was required to comply with the registration provisions of the Sex Offender Registration Act. (§ 290 et seq.)
Undesignated statutory references are to the Penal Code. --------
In January 2019, probation officers arrested defendant at his home. Defendant had not reported to the probation department in over six months, in violation of a condition of postrelease community supervision. While in custody, defendant admitted he had failed to update his sex offender registration within five working days of his December 6 birthday.
Defendant pleaded guilty to a felony violation of section 290.012, subdivision (a) [annual sex offender registration], and admitted a prior strike conviction (his 1996 section 288, subdivision (a) conviction), in exchange for (1) a sentencing lid of 32 months, (2) preservation of his right to file a motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), and (3) dismissal of the special allegation that defendant was previously imprisoned for a felony and had not remained free of prison custody for a period of five years before he committed the instant felony (§ 667.5, subd. (b)).
Prior to sentencing, defendant filed a Romero motion, seeking to dismiss the prior strike conviction allegation. The trial court reviewed that motion and also reviewed the probation report. The probation report detailed defendant's criminal record and poor performance while on supervision after his release from state prison in 2016. The report explained that defendant's most recent conviction was a 2014 felony for willful failure to appear in court. (§ 1320, subd. (b).) Nevertheless, at sentencing, defense counsel urged the court to dismiss the prior strike conviction allegation and place defendant on probation, arguing that defendant did not have a lengthy criminal history after his 1996 strike conviction and this was the first time he had failed to comply with annual sex offender registration.
The trial court denied the Romero motion, noting that defendant returned to prison several times between 2007 and 2010 and then returned to prison in 2014. The trial court said defendant had a "miserable" record on supervision and has not had a significant period outside incarceration to demonstrate a track record of registering. The trial court concluded that it did not find defendant to be outside the spirit of the three strikes law.
The trial court observed that its denial of the Romero motion rendered defendant ineligible for probation, and it sentenced him to two years eight months in state prison (the lower term of 16 months, doubled for the strike).
II
Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief.
Defendant filed a supplemental brief, arguing (A) the trial court should have granted the Romero motion, and (B) the two year eight month sentence is unfair because this was the first time in 23 years that defendant failed to update his sex offender registration, and he was only 20 days behind in failing to comply with the law when he was arrested in January 2019. We address each contention in turn.
A
Defendant first argues the trial court should have granted his Romero motion. We conclude the trial court did not abuse its discretion.
The three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) uses a defendant's status as a recidivist to separately increase the punishment for each new felony conviction. (People v. Williams (2004) 34 Cal.4th 397, 404.) In considering a Romero motion to dismiss a prior strike conviction allegation, 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 [three strikes] 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 (1998) 17 Cal.4th 148, 161.) We review the trial court's denial of a Romero motion for abuse of discretion. (See People v. Carmony (2004) 33 Cal.4th 367, 375.)
Here, the trial court was within its discretion in concluding that defendant did not fall outside the spirit of the three strikes scheme given defendant's criminal history, including a 2014 felony conviction and his poor performance on supervision. The trial court's decision was not so irrational or arbitrary that no reasonable person could agree with it. (People v. Carmony, supra, 33 Cal.4th at p. 377.)
B
Defendant further argues his two year eight month sentence is unfair. Although he claims this was the first time in 23 years that he failed to update his sex offender registration, he was not required to update his registration while in custody (see § 290.015, subd. (a)). In any event, he cannot challenge his two year eight month sentence as unfair, because he expressly agreed to a 32-month lid as part of his plea agreement. (See People v. Panizzon (1996) 13 Cal.4th 68, 80 [" 'When a guilty . . . plea is entered in exchange for specified benefits such as the dismissal of other counts or an agreed maximum punishment, both parties . . . must abide by the terms of the agreement' "].)
C
Based on our review of the record, we conclude the contentions asserted in defendant's supplemental brief lack merit. However, we note a clerical error in the abstract of judgment. In its oral pronouncement of sentence, the trial court imposed the lower term of 16 months, and then doubled it pursuant to the three strikes law. But sections 1 and 4 of the abstract of judgment do not reflect this. We will direct the trial court to correct the abstract of judgment.
Having undertaken an examination of the entire record, we find no other arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment reflecting the following oral pronouncement of sentence: the lower term of 16 months, doubled pursuant to the three strikes law. The trial court shall forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
/S/_________
MAURO, J. We concur: /S/_________
BUTZ, Acting P. J. /S/_________
KRAUSE, J.