Opinion
A132800
12-28-2011
THE PEOPLE, Plaintiff and Respondent, v. BRYAN ANTONIO ROMANO, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Napa County Super. Ct. No. CR146621)
I. INTRODUCTION
On June 19, 2009, appellant was charged in a four-count complaint with multiple charges and special allegations in connection with a street fight occurring two days earlier. Shortly thereafter, he pled no contest to two of the charges and was placed on probation by the trial court. Two years later, pursuant to two separate prosecution petitions, the trial court revoked appellant's probation and ordered him to serve the prison term it had previously imposed, i.e., three years and eight months. Appellant appeals this order. Pursuant to People v. Wende (1979) 25 Cal.3d 436, he has filed a brief asking that we examine the record and determine if there are any issues deserving of further briefing. We have done so, find none, and hence affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
The charged offenses allegedly occurred during the early evening of June 17, 2009, in the City of St. Helena. As noted, he and a codefendant were charged with four counts by a complaint filed two days later. The four counts were for (1) assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), (2) street terrorism (§ 186.22, subd. (a)), (3) battery and criminal street gang activity (§§ 242 & 186.22, subd. (d)), and (4) disturbing the peace and criminal street gang activity (§§ 415 & 186.22, subd. (d)). The complaint also contained four separate special allegations, three of them against both defendants, and one naming appellant as a former ward of the court.
All further statutory references are to the Penal Code unless otherwise noted.
On July 2, 2009, appellant pled no contest to counts 3 and 4, noted above, and completed a written plea waiver form. All the other counts and allegations were, as a consequence, dismissed.
On August 19, 2009, the trial court ordered a section 1203.03 diagnostic report from the Department of Corrections, and received and considered it in the following months. On October 28, after considerable discussion before the court, it determined not to follow the recommendation of that report, i.e., that appellant be sentenced to prison and in fact imprisoned and, instead, sentenced him to a term of three years on count 3 (battery) and a consecutive one-third of the midterm on count 4, for a total of three years and eight months, and then suspended the sentence and granted appellant probation. No objection to any aspect of this sentence was voiced by appellant's counsel at that hearing.
On March 7 and 17, 2011, two petitions were filed by the District Attorney to revoke probation. The first petition alleged a new battery offense and the second that he had violated the conditions of probation by wearing gang clothing and failing to register as a gang member.
At a hearing held on May 5, 2011, appellant admitted both allegations.
On June 13, 2011, the court declined to allow appellant to continue on probation and, instead, lifted the stay of execution and ordered that he begin to serve the term previously imposed, with presentence custody credits of 540 days. At that hearing, appellant's counsel stated that she objected to the sentence as contrary to section 654.
Appellant filed a timely notice of appeal on July 28, 2011. That notice specifically stated that the sentence imposed violated section 654.
III. DISCUSSION
As noted above, appellant, then represented by counsel, specifically agreed to the plea of no contest to two of the four charges in the 2009 complaint (counts 3 and 4) and admitted to the "criminal street gang allegations" annexed to both. In the course of so doing, he acknowledged that he understood his maximum sentence could be three years and eight months. Appellant was, at his later sentencing hearing, specifically sentenced to that term, the eight-month portion being the consecutive sentence for one-third of mid- term for the disturbing the peace and criminal street gang activity charges alleged in count 4 of the complaint. No objection was made to that sentence at the 2009 sentencing hearing—after which, as noted above, appellant was placed on probation.
Appellant's notice of appeal stated that it was based on section 654, i.e., that appellant had improperly been given consecutive sentences for essentially the same crime.
First of all, no such challenge was articulated at either the plea hearing or the sentencing hearing by counsel—clearly a very articulate and able counsel—then representing appellant.
Second, counts 3 and 4 of the complaint do not allege the same offense. Count 3 charged battery and criminal street activity in violation of sections 242 and 186.22, subdivision (d), and specifically alleged that appellant "willfully and unlawfully use[d] force and violence upon the person of Isaac S.," a minor. Count 4 charged disturbing the peace and criminal street gang activity under sections 415 and 186.22, subdivision (d), and did not allege any specific victim or victims. Rather, it alleged that appellant and another defendant "did unlawfully fight in a public place, challenge another person in a public place to fight, maliciously disturb another person by a loud and unreasonable noise, and use offensive words in a public place which were inherently likely to produce an immediate violent reaction." In view of the differences between the allegations in the two counts, section 654 did not bar the consecutive sentence. (See, e.g., People v. Garcia (2007) 153 Cal.App.4th 1499, 1514; People v. Ferraez (2003) 112 Cal.App.4th 925, 935; People v. Herrera (1999) 70 Cal.App.4th 1456, 1465-1468; see, generally, 3 Witkin, Cal. Criminal Law (2011 Supp.) § 155.)
We have carefully examined the record, and find no issues deserving of further briefing.
IV. DISPOSITION
The judgment is affirmed.
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Haerle, Acting P.J.
We concur:
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Lambden, J.
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Richman, J.