Opinion
A131699
09-19-2011
THE PEOPLE, Plaintiff and Respondent, v. HUMBERTO VALDOVINOS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. SC071066)
Defendant Humberto Valdonvinos appeals the sentence imposed after he pleaded no contest to petty theft with a prior, in violation of Penal Code section 666.Defendant's appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, and requests that we conduct an independent review of the record. (See also People v. Kelly (2006) 40 Cal.4th 106, 124 (People v. Kelly).) Defendant was informed of his right to file a supplemental brief and did not file such a brief. Having independently reviewed the record, we conclude there are no issues that require further briefing, and therefore affirm the judgment.
Further statutory references are to the Penal Code unless otherwise noted.
F ACTUAL AND P ROCEDURAL B ACKGROUND
On January 9, 2010, San Bruno police responded to Sears Department Store on report of a theft. A loss prevention officer informed police he observed defendant on a closed circuit television monitoring the Men's department. Defendant selected a brown jacket and tried it on for size. He then broke off the electronic article surveillance attached to the jacket by stepping on it. Defendant draped the jacket over a stroller he was pushing and placed another jacket on top to conceal the merchandise. After leaving the store, defendant was contacted and detained by loss prevention personnel.
These facts are drawn from the probation report.
In June 2010, the San Mateo County District Attorney (DA) filed an information alleging defendant committed a petty theft, having suffered a prior theft-related conviction, in violation of section 666. The DA further alleged defendant had suffered four prior felony convictions; a juvenile adjudication for assault with a deadly weapon (§ 245, subd. (a)) in June1997; possession of a controlled substance for sale (Health & Saf., Code, § 11350) in September 2000; infliction of corporal injury on a cohabitant (§ 273.5) in March 2001; and receipt of stolen property (§ 496) in September 2005. Also, the DA alleged defendant's 1997 assault conviction was a violent strike felony, within the meaning of section 1170.12, subdivision (c)(1). Last, the DA alleged defendant served a term in state prison for his section 273.5 offense, and thereafter did not remain free of prison custody for five years, within the meaning of section 667.5, subdivision (b).
In October 2010, defendant appeared with counsel at a plea hearing. Defense counsel presented the court with a change of plea form signed and initialed by defendant. The form stated defendant wished to plead no contest to the sole count in the information and admit the prior strike felony, in return for referral to probation with a top sentence of 32 months in state prison, as well as the court's consideration of a Romero motion at sentencing. The trial court acknowledged receipt of the form and advised defendant of his constitutional rights. Defendant indicated he understood those rights and agreed to waive them. The trial court advised defendant that the maximum possible penalty for the offense is six years in state prison followed by four years on parole. After defense counsel agreed there was a factual basis for the offense, the court accepted defendant's no contest plea and found defendant guilty as charged. Thereafter, the DA dismissed the balance of the information pursuant to the plea agreement.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 [holding that section 1385(a) permits a court "acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law"].)
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Prior to sentencing, defense counsel filed a Romero motion asking the court to dismiss defendant's strike prior in the interests of justice. The DA opposed defendant's Romero motion. At the sentencing hearing, the trial court denied defendant's Romero motion. Thereafter, the court sentenced defendant to the low term of 16 months on the offense of conviction, doubled under the three strikes law (§ 1170.12), for a total term of 32 months. The trial court's oral pronouncement of judgment is reflected in the abstract of judgment filed on February 14, 2011. Defendant filed a timely notice of appeal on April 6, 2011.
DISCUSSION
In ruling on a Romero motion, 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 [spirit of the three strikes law] scheme[] 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.) 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 concludes defendant warrants exception to the three-strikes scheme. (People v. Strong (2001) 87 Cal.App.4th 328, 337-338.) However, only under "extraordinary . . . circumstance[s]" can a defendant 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." (Id. at p. 338.)
Here, the trial court carefully considered the Romero factors. The court observed that the surreptitious manner in which defendant committed the current offense indicated it was a deliberate, rather than an impulsive, act. Further, the court noted that defendant had "a significant pattern of criminal history," including crimes of violence, possession of drugs for sale and theft-related offenses. Also, the court noted that the record showed defendant had received Romero benefits in sentencing for two prior offenses and "ha[d] not learned anything as it relates to rehabilitation." The court concluded: "I don't find anything that demonstrates there is something so unusual or unique about your particular character or your prospects for the future that you fall outside of the . . . strikes legislation." Our independent review of the record reveals no abuse of discretion in the court's denial of defendant's Romero motion. (See People v. Williams, supra, 17 Cal.4th at p. 158 [denial of Romero motion is reviewed for abuse of discretion].)
Furthermore, having reviewed the entire record, we have identified no arguable issues that warrant further briefing.
DISPOSITION
The judgment is affirmed.
Jenkins, J.
We concur:
Pollak, Acting P. J.
Siggins, J.