People v. Micheletti CA1/2 ( 2021 )

Filed 4/26/21 P. v. Micheletti CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A161107
v.
ROBERT MICHELETTI, (San Mateo County
Super. Ct. No. 19NF012198A)
Defendant and Appellant.
Defendant Robert Micheletti appeals from a judgment entered after he
pled no contest to felony grand theft and admitted a strike prior conviction
from 1985 as part of a negotiated disposition. Defendant’s court-appointed
counsel has filed a brief asking this court for an independent review of the
record under People v. Wende (1979) 25 Cal.3d 436. Defendant was informed
of his right to file supplemental briefing and has not filed such a brief. We
have reviewed counsel’s brief and independently reviewed the record, and we
find no errors or other issues requiring further briefing. Accordingly, we
affirm.
On October 16, 2019, defendant was charged by information with felony
grand theft (Pen. Code, § 487, subd. (a), count 1),1 felony receiving stolen
All further statutory references are to the Penal Code unless
1
otherwise stated.
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property (§ 496, subd. (a), count 2), and misdemeanor possession of drug
paraphernalia (Health & Saf. Code, § 11364, count 3). The information also
alleged two strike prior convictions from 1985 and 1992, and an allegation
that defendant was not eligible for probation. (§§ 667, 1170.12, 1203, subd.
(e)(4).)
As part of a negotiated disposition, on March 2, 2020, defendant pled no
contest to grand theft (count 1) and admitted the 1985 strike prior.
Defendant pled to a stipulated maximum sentence of 32 months, open to the
consideration of a Romero2 motion to strike the 1985 strike prior. In
exchange, the district attorney dismissed the remaining counts and
allegations of the information, and a separate pending case was dismissed
subject to a Harvey3 waiver for possible restitution.
According to the probation report, the current charges arose when a
JCPenney loss prevention officer saw defendant leave the store on September
21, 2019, without paying for numerous articles of men’s clothing. Defendant
drove off but was soon stopped by police officers, who searched his car and
found 10 jackets from JCPenney, valued at $1,055, and 10 jackets, four
purses, and two other items from Nordstrom valued at $3,969. Defendant
also possessed drug paraphernalia.
Defendant completed a change of plea form that advised him of his
rights and the rights he was waiving; the forms were signed by his counsel
and by the court. Defense counsel and the prosecutor stipulated to a factual
basis for the no contest plea. The court found defendant knowingly,
2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
3 People v. Harvey (1979) 25 Cal.3d 754.
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voluntarily and intelligently waived his rights and entered a plea of no
contest.
At the sentencing on August 12, 2020, the court stated that it had
considered the probation report prepared in advance of the sentencing, as
well as defendant’s written Romero motion to strike the prior and the
opposition filed by the district attorney’s office. The court then asked for
arguments of counsel on the Romero motion. Defense counsel argued that
defendant’s extensive criminal history was that of “being addicted to drugs
and stealing,” that he was “not a violent offender,” that he had serious health
issues (cancer and hepatitis), and that a 32-month sentence would result in
him being placed in the California Department of Corrections and
Rehabilitation (CDCR), where he would “spend his entire time in the medical
unit” and which would “hasten his death.” Counsel expressed concern that it
was dangerous to send defendant to the CDCR during the Covid-19
pandemic. Defense counsel conceded that after defendant was charged in
this case, he was charged in Contra Costa County with auto theft.
Acknowledging that even if the Romero motion was granted, defendant would
be sentenced to 16 months in the CDCR, defense counsel speculated that it
was unclear whether defendant would “actually be transported or not” to the
CDCR, noting “I can’t speak to that because it’s been changing.” At that
point, defendant had a total of 153 days of custody credits, according to the
probation office. Arguing against the Romero motion, the prosecutor began
by stating that the CDCR “isn’t even sending people or taking people right
now or being transported. So he’d likely do most of his sentence here or until
Covid-19 is essentially under control.” As to her reasons for opposing the
Romero motion, the prosecutor argued that defendant “has flouted this court”
by his failures to appear, that he had been committing crimes continuously
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since 1985 and had been in and out of prison, that the “biggest gap” in his
criminal history was from 1998 to 2007 because he was in prison at that time
on six theft-related felonies, and that he “went back to prison” in 2014 for
threatening or trying to bribe a correctional officer. The prosecutor described
defendant as having “a consistent [criminal] history, and there’s been zero
break.” She noted that defendant had “picked up . . . actually two cases . . .
before he finally came into custody” in this case. She argued that defendant
“has used his ailments over and over and over again to manipulate this Court
to get out of custody, to commit new crimes, and then to come back and just
say the same thing and get mercy from the Court.” The prosecutor concluded
there was “absolutely zero justification” to grant the Romero motion given
defendant’s “pervasive criminality” and defendant had done “absolutely
nothing to show the court that he has bettered himself or will do anything
better with his life when he gets out.”
The trial court denied the Romero motion and explained why. “I am
definitely very sensitive to [defendant’s] medical issues. I am also very clear
as to what is expected of the three-strikes law; what the requirements are;
and what the court should consider with regard to a Romero motion. [¶] And
here we’ve got somebody who, despite the relatively lower-level nature of,
perhaps, the strike from ‘85 and even perhaps the current case, and even
considering his medical condition, this is someone who has consistently and
repeatedly, since the strike, been convicted of both misdemeanors and
felonies and, frankly, has now . . . picked up a couple new cases subsequent to
being released on this case. [¶] Those types of actions, despite his medical
conditions, are not the type of person for which Romero is indicated. That’s
not at all what the granting of striking a strike is for. It’s for somebody who
may have an older strike who has not had a long record subsequent to the
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strike offense. [¶] But . . . I can’t even count the number of felonies and
misdemeanors. I started to try in my notes. There’s just so many. And then
the new crime is post release on this case. [¶] It’s clear, based on his conduct
and missing court appearances, how he was with the probation officer, that
[defendant], if and when released, is going to go back—right back to his life of
crime. It’s a pattern of his literally for decades. [¶] So he is not a
candidate—in my mind, it’s not even close—for the granting of a Romero
motion.”
Consistent with the negotiated disposition, the trial court imposed the
low term of 16 months on count 1, plus an additional 16 months for the prior
strike allegation.
DISCUSSION
We have reviewed the record on appeal for any arguable issues.
Defendant was sentenced after a no contest plea and did not obtain a
certificate of probable cause. Any issues as to the validity of his plea are not
before us. (§ 1237.5.) Before entering his no contest plea and admission of
the strike prior, defendant was advised of his rights, and there is no
indication he did not understand his rights, including the rights he was
waiving. The court found defendant had knowingly, voluntarily, and
intelligently waived his rights and his plea was voluntary. Counsel
stipulated to the factual basis for the plea.
In ruling on a Romero motion, the trial court “must consider whether,
in light of the nature and circumstances of his 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 [spirit of the three strike law] scheme[ ] . . . in whole or in part, and hence
should be treated as though he had not previously been convicted of one or
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more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th
148, 161.) The three strikes law “establishes a sentencing requirement to be
applied in every case where the defendant has at least one qualifying strike,
unless the sentencing court ‘conclud[es] that an exception to the scheme
should be made . . . .’ ” (People v. Strong (2001) 87 Cal.App.4th 328, 337-338.)
Thus there must be something exceptional about the prior offenses, the
current offense, or the defendant’s background, character, and prospects, to
justify striking a prior serious conviction.
We review a court’s decision not to strike or dismiss a prior conviction
allegation for abuse of discretion, the most deferential standard of review.
(People v. Carmony (2004) 33 Cal.4th 367, 374.) “ ‘[I]t is not enough to show
that reasonable people might disagree about whether to strike one or more’
prior conviction allegations. [Citation.] Where the record is silent [citation],
or ‘[w]here the record demonstrates that the trial court balanced the relevant
facts and reached an impartial decision in conformity with the spirit of the
law, we shall affirm the trial court’s ruling even if we might have ruled
differently in the first instance’ [citation].” (Id. at p. 378.)
The sentence imposed is authorized by law and was in compliance with
the plea agreement. Custody credits appear to have been calculated
correctly.
Based on our review of the record, defendant was represented by
competent counsel who acted to protect his rights and interests.
We conclude there are no arguable issues within the meaning of People
v. Wende, supra, 25 Cal.3d 436.
The judgment is affirmed.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Richman, Acting P.J.
_________________________
Stewart, J.
A161107, People v. Micheletti
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