People v. Reyes CA2/6

Filed 1/22/14 P. v. Reyes CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B250033 (Super. Ct. No. 2013001815) Plaintiff and Respondent, (Ventura County)

v.

JAMES MITCHELL REYES,

Defendant and Appellant.

James Mitchell Reyes appeals the judgment entered after he pled guilty to unlawfully driving or taking a vehicle with a prior vehicle theft conviction (Veh. Code, § 10851, subd. (a); Pen. Code,1 § 666.5), driving while intoxicated or with a blood alcohol level of 0.08 or more (Veh. Code, § 23152, subds. (a), (b)), and driving with a suspended license (Veh. Code, § 14601.2, subd. (a)). Appellant also admitted allegations that he had suffered a prior conviction for robbery (§ 211), which qualifies as a strike (§§ 667, 1170.12), and had served five prior prison terms (§ 667.5, subd. (b)). The trial

1 All further undesignated statutory references are to the Penal Code.

court denied appellant's Romero2 motion, struck the prior prison term allegations, and sentenced him to four years in state prison. Because appellant pled guilty prior to trial, the relevant facts are derived from the preliminary hearing transcript. Someone stole a car from a gas station while its owner was paying for gas. Later that day, appellant was pulled over while driving the car erratically. Appellant was arrested after a preliminary alcohol-screening sample revealed he had a 0.24 blood alcohol level. We appointed counsel to represent appellant in this appeal. After examining the record, counsel filed an opening brief raising no issues. On December 9, appellant was advised that he had 30 days to personally submit any contentions he wished us to consider. In a timely response, appellant contends the court erred in denying his Romero motion and his request to be placed in an alcohol treatment program. A trial court has the discretion to strike a prior conviction for purposes of sentencing if the defendant falls outside the spirit of the three strikes law. (§ 1385; Romero, supra, 13 Cal.4th at pp. 529-530.) In deciding whether to exercise its discretion, the court "must consider whether, in light of the nature and circumstances of [the defendant's] 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 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.) The refusal to strike a prior conviction is likely to be considered an abuse of discretion only in extraordinary cases where the trial court was unaware of its discretion, or considered impermissible factors. (People v. Carmony (2004) 33 Cal.4th 367, 378.) In the absence of such a showing, we presume the court acted to achieve the legitimate sentencing objectives and will not set aside its discretionary determination to impose a particular sentence. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)