People v. Espey CA3

Filed 2/19/21 P. v. Espey CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Shasta) ----

THE PEOPLE, C086379

Plaintiff and Respondent, (Super. Ct. No. 17F996)

v.

FLOYD JOSEPH ESPEY,

Defendant and Appellant.

Defendant Floyd Joseph Espey pleaded no contest to bringing a controlled substance into jail and admitted that he suffered a strike prior conviction and a prison prior conviction. On appeal, he contends: (1) the trial court abused its discretion when it denied his Romero1 motion to strike his strike prior conviction, and (2) he is entitled to a remand to allow the trial court to determine whether to grant him a mental health

1 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

1

diversion under newly enacted Penal Code section 1001.36.2 We conclude the trial court did not abuse its discretion in denying defendant’s Romero motion, but we will remand the matter to give the trial court the opportunity to consider whether he is eligible for diversion under section 1001.36. FACTUAL AND PROCEDURAL BACKGROUND Defendant was arrested based on violations of his prior release supervision conditions. Once in custody, defendant resisted the search and refused to comply with staff directives. Defendant eventually produced an object wrapped in plastic from his anus, which tested presumptively positive for heroin and weighed 4.9 grams. Defendant pleaded no contest to bringing a controlled substance into jail in violation of section 4573; he admitted that he suffered a strike prior conviction (§ 1170.12), and a prison prior conviction (§ 667.5, subd. (b)). He agreed to the plea in exchange for a maximum sentence of seven years (midterm of three years doubled plus a year for the prison prior). During the change of plea hearing, the court noted defendant would have an opportunity to file a Romero motion to argue that he was outside the spirit of the three strikes scheme and therefore eligible for probation. Defendant subsequently filed a Romero motion, asking the court to strike the punishment for his prior “strike” conviction for residential burglary. (§§ 667, subd. (d), 1170.12, subd. (b).) Defendant argued that the court should consider his background, character, and prospects to find him outside the spirit of the three strikes law. The exhibits included letters from defendant’s mother explaining his family history and struggle with drug addiction, defendant’s military service record, his disability records, and a certificate of completion of an anger management course. In its opposition to the motion, the prosecution argued that defendant fell within the spirit of the three strikes law