P. v. Howe CA5

Filed 4/9/13 P. v. Howe CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F064332 Plaintiff and Respondent, (Super. Ct. No. 10CM8754) v.

STEVEN HOWE, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kings County. Steven D. Barnes, Judge.

Ronald R. Boyer, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Kane, J., and Poochigian, J.

STATEMENT OF THE CASE Appellant, Steven Howe, was charged on June 9, 2011, in an information with one count of possession of marijuana while being an inmate in state prison (Pen. Code, § 4573.6).1 The information also alleged 28 serious or violent felonies pursuant to the three strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)). The information also alleged three prior prison term enhancements (§ 667.5, subd. (b)). On November 21, 2011, appellant entered into a plea agreement wherein he would admit the substantive count and 15 prior serious felony convictions in exchange for dismissal of the remaining allegations. The parties agreed that the factual basis for appellant’s plea was that on January 31, 2010, appellant possessed marijuana in Avenal State prison without permission. Appellant was informed of the consequences of his plea, including the fact that he was facing a sentence of 25 years to life. Appellant was also advised that he could request that the court strike some of his prior serious felony convictions. The court informed appellant of his constitutional rights pursuant to Boykin/Tahl2 and appellant waived them. Appellant pled guilty to possession of marijuana in state prison and admitted 15 prior serious felony convictions. On January 20, 2012, the trial court declined to exercise its discretion to strike any of appellant’s prior serious felony allegations and sentenced him to prison for a term of 25 years to life to be served consecutively to the sentence appellant was serving when he committed this offense. The court imposed a $200 restitution fine. Appellant did not