Filed 10/8/13 P. v. Chavez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E058687
v. (Super.Ct.No. FVI03804)
MICHAEL EDWARD CHAVEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,
Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Leslie Ann Rose, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant and appellant Michael Edward Chavez was charged by information
with first degree residential burglary (Pen. Code, § 459, count 1)1, robbery (§ 211, counts
2 & 3), and false imprisonment by violence (§ 236, counts 4 & 5). The information also
alleged that he had two prior strike convictions. (§§ 1170.12, subds. (a)-(d) and 667,
subds. (b)-(i).) Defendant entered a plea agreement and pled guilty to count 1 and
admitted the two prior strikes. In accordance with the plea agreement, the court
sentenced him to 25 years to life in state prison and dismissed the remaining counts.
Defendant filed a petition for resentencing under section 1170.126, known as the
Three Strikes Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 7,
2012)). The trial court denied the petition.
Defendant filed a timely notice of appeal. We affirm.
PROCEDURAL BACKGROUND
On March 5, 1996, pursuant to a plea agreement, defendant pled guilty to first
degree residential burglary (§ 459) and admitted two prior strike convictions (§§ 1170.12,
subds. (a)-(d) & 667, subds. (b)-(i)). The court sentenced him to state prison for 25 years
to life in accordance with the agreement.
On January 22, 2013, defendant, in pro. per., filed a petition for resentencing
under section 1170.126. On March 14, 2013, the court denied the petition since
1 All further statutory references will be to the Penal Code, unless otherwise
indicated.
2
defendant’s current conviction was for a serious offense, which made him ineligible for
resentencing under section 1170.126. (§ 1170.126, subd. (e)(1).)
ANALYSIS
After the notice of appeal was filed, this court appointed counsel to represent
defendant. Counsel has filed a brief under the authority of People v. Wende (1979) 25
Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the
case, a brief statement of the facts, and identifying one potential arguable issue: whether
the trial court erred in denying defendant’s petition for resentencing under section
1170.126.
Defendant was offered an opportunity to file a personal supplemental brief, which
he has done. In his brief, defendant first asserts that his two prior strike convictions were
for assault with a firearm (§ 245, subd. (a)(2)), which “can be committed in multiple
ways and . . . because the record does not disclose how the offense(s) were committed[,]
the court must presume the convictions[s] [were] for the least serious form of the
offense.” Defendant goes on to contend that the prosecution “did not satisfy the elements
of a recidivist statute enhancement,” citing People v. Delgado (2008) 43 Cal.4th 1059.
Defendant appears to be arguing that the prosecution failed to establish that his prior
assault convictions qualified as serious felonies under the Three Strikes law. (See Id. at
pp. 1065-1066.) Defendant’s claim is meritless. He admitted that he suffered two prior
strike convictions for assault with a firearm. (§ 245, subd. (a)(2).) Moreover, assault
with a firearm is a serious felony. (§ 1192.7, subd. (c)(31).)
3
Defendant next asserts that he never had a hearing pursuant to People v. Superior
Court (Romero) (1996) 13 Cal.4th 497 (Romero). He now requests that we remand the
matter for such hearing to be held. Defendant apparently wishes to have his plea
agreement set aside so he can request the trial court to exercise its discretion to strike his
prior strikes. We note that defendant’s plea arose out of a plea bargain agreed to by him
and the People, in which he pled guilty, admitted his two prior strike convictions, and
agreed to the term of 25 years to life. The court sentenced defendant to 25 years to life in
accordance with the agreement. We conclude that “defendant’s express agreement to
imposition of a [25-year-to-life] term precludes a remand for the purpose of obtaining a
lesser term by virtue of the trial court’s striking of [a] prior offense.” (People v.
Cunningham (1996) 49 Cal.App.4th 1044, 1048; see also People v. Cepeda (1996) 49
Cal.App.4th 1235, 1239-12402 [appellant was estopped from complaining that he was
entitled to a Romero remand for resentencing, since he had entered a plea bargain].)
Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent
review of the record and find no arguable issues.
2Overruled on other grounds as stated in People v. Mendez (1999) 19 Cal.4th
1084, 1097-1098.
4
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
McKINSTER
J.
MILLER
J.
5
People v. Chavez CA4/2
Combined Opinion