People v. Cunningham CA4/3

Filed 6/26/14 P. v. Cunningham CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G048705

v. (Super. Ct. No. 12HF3507)

RYAN TYLER CUNNINGHAM, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed. Gideon Margolis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.

After a jury convicted defendant Ryan Tyler Cunningham of felony possession of a controlled substance, the trial court found true the allegations Cunningham suffered a previous serious and violent felony (“strike”) conviction and had served one prior prison term. (Pen. Code, §§ 667, subds. (d) and (e)(1); 1170.12, subds. (b) & (c)(1); 667.5, subd. (b).)1 On appeal, Cunningham argues the trial court abused its discretion in denying his motion to dismiss the prior “strike” pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We find no abuse of discretion. Accordingly, we affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND A jury convicted Cunningham of possessing a usable quantity (approximately one half gram) of heroin, which police found hidden inside a bedpost in Cunningham’s bedroom during a search of his home. Cunningham waived his right to a jury trial on the priors alleged against him, and the trial court found true the allegations he had a prior strike conviction in 2009 for first degree burglary (§§ 459, 460, subd. (a)), and a prison term prior. The trial court denied Cunningham’s motion to dismiss the prior strike, but struck the prison prior for sentencing purposes. The trial court sentenced Cunningham to 32 months (the low term of 16 months, doubled for the strike prior) in prison. DISCUSSION Cunningham contends the trial court abused its discretion when it refused to dismiss the prior conviction allegation. We disagree. 1. Applicable Legal Principles “Under section 1385, subdivision (a), a ‘judge . . . may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.’ ‘In Romero, [supra, 13 Cal.4th 497,] [the