P. v. Rivera CA2/6

Filed 7/23/13 P. v. Rivera CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B246055 (Super. Ct. No. 2009044545) Plaintiff and Respondent, (Ventura County)

v.

PHILLIP ALAMILLO RIVERA,

Defendant and Appellant.

Phillip Alamillo Rivera appeals his sentence following his guilty plea to possession for sale of a controlled substance - heroin, a felony. (Health & Saf. Code, § 11351.) The trial court sentenced him to six years in state prison. He filed a "motion" requesting the court to strike for sentencing purposes his prior serious felony "strike" convictions for robbery and burglary. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) The court denied that request. We conclude Rivera has not met his burden to show an abuse of discretion. We affirm. FACTS On December 7, 2009, police officer Kimberley Hemminger received a dispatch call to go to a restaurant because employees suspected Rivera was "possibly selling narcotics." When police arrived, they talked to Rivera and noticed he was "fidgety." His eyes "had the tremors," his pupils were "constricted," and he appeared to be "under the

influence of narcotics." He had "track marks" consistent with someone who had been injecting narcotics. Rivera was arrested and in a search police found "a large amount of cash in his front left pocket." In his cell phone case, they found drug "paraphernalia" - bags containing 45 small aluminum foil "bindles" and heroin. In a plea agreement, Rivera pled guilty to possession for sale of heroin. He admitted that he possessed 14.25 grams of heroin and that he had two prior "strike" convictions for robbery in 1979 and burglary in 1991. On June 25, 2012, Rivera filed a "Romero motion" requesting the trial court to strike his prior strike convictions. The court denied the request. It considered "the factors under Romero" and ruled it was not "appropriate" to strike the prior strikes. It found that his prior convictions were "numerous" and his performance on probation or parole was "unsatisfactory." The trial court noted that when Rivera entered his guilty plea, he faced a 25- year-to-life sentence under the three strikes law. But shortly before the sentencing hearing, voters approved amendments to that law. (Pen. Code, § 667, subds. (c)(1), (e)(1).) The court said Rivera was "fortunate that he has the benefit of this new law." Because his current conviction was "neither a serious or violent felony," the "court cannot treat it as a three-strike case." DISCUSSION Abuse of Discretion Rivera contends the trial court abused its discretion by not striking his prior serious felony convictions. We disagree. "'[A] trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, "in furtherance of justice". . . .'" (People v. Carmony (2004) 33 Cal.4th 367, 373.) But a court's decision on whether to grant such relief is "discretionary" and is "reviewable for abuse of discretion." (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 531-532.)