Filed 1/22/14 P. v. Reyes CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B250033
(Super. Ct. No. 2013001815)
Plaintiff and Respondent, (Ventura County)
v.
JAMES MITCHELL REYES,
Defendant and Appellant.
James Mitchell Reyes appeals the judgment entered after he pled guilty to
unlawfully driving or taking a vehicle with a prior vehicle theft conviction (Veh. Code,
§ 10851, subd. (a); Pen. Code,1 § 666.5), driving while intoxicated or with a blood
alcohol level of 0.08 or more (Veh. Code, § 23152, subds. (a), (b)), and driving with a
suspended license (Veh. Code, § 14601.2, subd. (a)). Appellant also admitted allegations
that he had suffered a prior conviction for robbery (§ 211), which qualifies as a strike
(§§ 667, 1170.12), and had served five prior prison terms (§ 667.5, subd. (b)). The trial
1 All further undesignated statutory references are to the Penal Code.
court denied appellant's Romero2 motion, struck the prior prison term allegations, and
sentenced him to four years in state prison.
Because appellant pled guilty prior to trial, the relevant facts are derived
from the preliminary hearing transcript. Someone stole a car from a gas station while its
owner was paying for gas. Later that day, appellant was pulled over while driving the car
erratically. Appellant was arrested after a preliminary alcohol-screening sample revealed
he had a 0.24 blood alcohol level.
We appointed counsel to represent appellant in this appeal. After
examining the record, counsel filed an opening brief raising no issues. On December 9,
appellant was advised that he had 30 days to personally submit any contentions he wished
us to consider. In a timely response, appellant contends the court erred in denying his
Romero motion and his request to be placed in an alcohol treatment program.
A trial court has the discretion to strike a prior conviction for purposes of
sentencing if the defendant falls outside the spirit of the three strikes law. (§ 1385;
Romero, supra, 13 Cal.4th at pp. 529-530.) In deciding whether to exercise its discretion,
the court "must consider whether, in light of the nature and circumstances of [the
defendant's] present felonies and prior serious and/or violent felony convictions, and the
particulars of his background, character, and prospects, the defendant may be deemed
outside the scheme's spirit, in whole or in part, and hence should be treated as though he
had not previously been convicted of one or more serious and/or violent felonies."
(People v. Williams (1998) 17 Cal.4th 148, 161.) The refusal to strike a prior conviction
is likely to be considered an abuse of discretion only in extraordinary cases where the
trial court was unaware of its discretion, or considered impermissible factors. (People v.
Carmony (2004) 33 Cal.4th 367, 378.) In the absence of such a showing, we presume the
court acted to achieve the legitimate sentencing objectives and will not set aside its
discretionary determination to impose a particular sentence. (People v. Superior Court
(Alvarez) (1997) 14 Cal.4th 968, 977-978.)
2 (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)
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The court did not abuse its discretion in denying appellant's motion to strike
his 2000 robbery conviction under Romero. In denying the motion, the court reasoned
"this was an auto theft when somebody was highly intoxicated. But for luck we could be
here dealing with an entirely different and much more tragic situation. And lucky that
didn't happen. But it's still very serious felony conduct from somebody who's had many
opportunities to correct the behavior before now." The court also noted it was exercising
its discretion to dismiss all five of appellant's prison priors and sentence him to the low
term. In light of appellant's lengthy criminal history and the seriousness of the current
offenses, the court did not abuse its discretion in concluding that neither the nature of the
offender nor the nature of the offenses indicated appellant fell outside the spirit of the
three strikes law. For the same reason, the court did not abuse its discretion in denying
appellant's request that he be allowed to participate in a treatment program in lieu of a
prison sentence.
We have reviewed the entire record and are satisfied that appellant's
attorney has fully complied with his responsibilities and that no arguable issues exist.
(People v. Kelly (2006) 40 Cal.4th 106, 126; People v. Wende (1979) 25 Cal.3d 436,
443.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Matthew Guasco, Judge
Superior Court County of Ventura
______________________________
California Appellate Project, Jonathan B Steiner, Richard B. Lennon, under
appointment by the Court of Appeal; James M. Reyes, in pro. per., for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
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