People v. Gallagher CA1/3

Filed 12/31/15 P. v. Gallagher CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A143732 v. SHANE GALLAGHER, (Contra Costa County Super. Ct. No. 051316694) Defendant and Appellant.

Shane Gallagher (appellant) appeals from a judgment entered after a jury found him guilty of unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)), and the trial court found true allegations that he had suffered a prior serious felony conviction (Pen. Code, §§ 667/1170.121) and had served two prior prison terms (§ 667.5, subd. (b)). The court sentenced him to five years in state prison, and appellant timely appealed. He contends the court abused its discretion in: (1) denying his request to have his conviction reduced to a misdemeanor; and (2) denying his motion to strike his prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero motion). We reject the contentions and affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND On August 12, 2013, an information was filed charging appellant with unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a), count 1). The information also alleged he had previously been convicted of a serious felony (§§ 667/1170.12) and

1 All subsequent statutory references are to the Penal Code unless otherwise stated.

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had served two prior prison terms (§ 667.5, subd. (b)). Appellant moved to suppress evidence, and the trial court denied the motion. A jury found appellant guilty of count 1, and the court found true the prior allegations. Thereafter, appellant filed a Romero motion. The court denied the motion and sentenced appellant to a total term of five years in state prison. The information was based on an incident that occurred on September 12, 2012. At approximately 6:00 p.m. that evening, Oakland Housing Officer Tommy Calvin arrived at work and parked his green 1992 Honda vehicle in front of 2555 International Boulevard in Oakland. He put up all of the windows, turned off the car, and locked the doors. He was the only person who had keys to the car. At approximately 11:00 p.m., while doing his rounds, Calvin saw that his car was still parked where he had left it. A half hour to an hour later, he noticed his car was no longer there. He called the Oakland Police Department to report his car as stolen. At approximately 12:41 a.m., Danville Police Officer Carlos Dazhan conducted a traffic stop of a green 1992 Honda Accord in the city of Alamo in Contra Costa County, about 20 miles away from Oakland. A man, later identified as appellant, was the driver and sole occupant of the car. Dazhan asked appellant if the car was his; appellant responded that it was not, and that he did not know who the owner was. Dazhan asked appellant to turn off the car, but appellant said he could not because he did not have the keys. Dazhan asked appellant why he had the car if it was not his. Appellant responded that “he was coming from his son’s house” at 25th Avenue and International Boulevard. He said that when he did not find his son at home, he walked to a liquor store. As he was walking away from the store, he was attacked by an unknown group of six to eight males, one of whom stabbed him in the upper left shoulder. The others punched him all over, and he sustained an injury to his head. Appellant told Dazhan that he fought the men off, grabbed his belongings, and ran away, when he saw the Honda in the middle of the street, unlocked, unoccupied, and turned on and running. Appellant said he got into the Honda, put his belongings in the car, and drove away in order to protect himself. Dazhan