Opinion
E052963 Super.Ct.No. FWV0354963
08-16-2011
THE PEOPLE, Plaintiff and Respondent, v. JUAN MIGUEL ROMERO, Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion nas not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Michael R. Libutti, Judge. Affirmed.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
This opinion constitutes this court's third time addressing this matter. (People v. Romero (May 28, 2009, E044214) [nonpub. opn.]; People v. Romero (Oct. 12. 2010, E049654) [nonpub opn.].)
FACTUAL AND PROCEDURAL HISTORY
A. JURY'S FINDINGS AND DEFENDANT'S ADMISSIONS
A jury found defendant guilty of (1) being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1); count 1); (2) falsely imprisoning a person for the purpose of protection from arrest or for the purpose of using the person as a shield (§ 210.5; count 2); and (3) false imprisonment by violence (§ 236; count 3).
All further statutory references are to the Penal Code unless otherwise indicated.
As to all three counts, the jury found true the allegations that defendant (1) carried a firearm during the commission of a street gang crime (§ 12021.5, subd. (a)), and (2) carried a firearm with a detachable magazine or belt-feeding device during the commission of a street gang crime (§ 12021.5, subd. (b)). In regard to count 1, the jury found true the allegation that defendant committed the felony for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist the gang. (§ 186.22, subd. (b)(1)(A).) As to counts 2 and 3, the jury found true the allegation that defendant personally used a firearm during the commission of the felonies. (§ 12022.5, subd. (a).)
Defendant admitted suffering a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), three prior convictions for which he served prison terms (§ 667.5, subd. (b)), and a prior serious felony conviction (§ 667, subd. (a)(1)).
B. FIRST APPEAL
In defendant's first appeal, we concluded the trial court made a variety of sentencing errors. In that first disposition, we corrected some of the sentencing errors by modification, but also directed the trial court to exercise its discretion in correcting other errors.
C. FIRST RESENTENCING HEARING
Defendant was not present at the first resentencing hearing. At the hearing, the trial court failed to orally pronounce judgment for defendant's third prison prior, as directed by this court. The trial court also made errors related to the abstract of judgment.
D. SECOND APPEAL
In defendant's second appeal, we found the failure to secure defendant's presence at the resentencing hearing to be harmless. However, in our disposition, we directed the trial court to correct the sentencing errors from the resentencing hearing. Our disposition read, "The trial court is directed to amend the abstract of judgment to reflect that defendant's sentence for count 1 is 16 months for the substantive offense (§ 12021, subd. (a)(1)), and one year for the gang enhancement (§ 186.22, subd. (b)(1)(A)). In regard to the third prison prior (§ 667.5, subd. (b)), the trial court is directed to either strike the prior or impose a sentence."
E. SECOND RESENTENCING HEARING
Defendant was present at the second resentencing hearing. The trial court amended the abstract of judgment to reflect that defendant's sentence for count 1 is 16 months for the substantive offense (§ 12021, subd. (a)(1)), and one year for the gang enhancement (§ 186.22, subd. (b)(1)(A)). The trial court struck the third prison prior. (§ 667.5, subd. (b).) The trial court sentenced defendant to prison for a total term of 27 years, 4 months. The abstract of judgment was amended to reflect the trial court's changes to defendant's sentence.
At the resentencing hearing, defendant requested a different attorney, because he wanted an attorney to argue for "a lesser base term." The trial court denied the motion, because it "didn't feel that . . . was open for discussion."
DISCUSSION
On February 14, 2011, defendant filed a notice of appeal. We appointed counsel to represent defendant on appeal. After examining the record, counsel filed a brief raising no arguable issues and requesting that this court conduct an independent review of the record pursuant to People v. Wende, supra, 25 Cal.3d at page 436 and Anders v. California (1967) 386 U.S. 738. Nevertheless, defendant's counsel directed this court's attention to the possibility of three different arguments: (1) the trial court erred by not holding a Marsden hearing when defendant requested different counsel; (2) defendant is entitled to a remand for a Marsden hearing without needing to demonstrate prejudice; and (3) defendant was denied effective assistance of counsel. On June 10, 2011, we offered defendant an opportunity to file a personal supplemental brief, which he failed to do. We have independently examined the entire record and have determined that no arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 277-284; People v. Kelly (2006) 40 Cal.4th 106, 113-119; People v. Wende, supra, 25 Cal.3d at p. 441.)
People v. Marsden (1970) 2 Cal.3d 118.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
HOLLENHORST
Acting P. J.
McKINSTER
J.