People v. Beres CA1/4 ( 2020 )

Filed 12/28/20 P. v. Beres CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A159292
v. (San Mateo County
MELISSA MARIA BERES, Super. Ct. No. 17-SF-004575-A)
Defendant and Appellant.
In September 2019, Melissa Maria Beres was convicted by plea of no
contest to a commercial burglary (Pen. Code, §§ 459, 460, subd. (b))1 of Flavor
Restaurant in Half Moon Bay in November 2016, as part of a negotiated
disposition that resolved several other charges as well. She was sentenced to
16 months in prison, consecutive to a sentence of eight years, eight months
that she was already serving for convictions in Santa Clara County. She now
appeals from her sentence and postplea orders. Her attorney has filed a brief
raising no issues, in accordance with the procedure prescribed in People v.
Wende (1979) 25 Cal.3d 436. We shall affirm the conviction and sentence.
Further undesignated statutory references are to the Penal Code
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unless otherwise indicated.
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I. BACKGROUND
With respect to the Flavor Restaurant burglary (count 2), a sheriff’s
investigation showed that on or about November 17, 2016, Beres had driven a
truck to the restaurant to help an accomplice transport a safe containing
$500 in cash that he and another accomplice had removed from the
restaurant premises. Several of the restaurant’s cash drawers had also been
knocked over and emptied. The burglars had pried open the glass front doors
to the restaurant to gain access.
Beres was also charged with a second count of commercial burglary
(count 1) based on a similarly-executed burglary of Jersey Joe’s Restaurant in
Half Moon Bay approximately two weeks earlier, in that the front glass door
to the restaurant was smashed to allow the burglars entry. The burglars
pried open an interior office door and took the owner’s credit card, $1,000 in
cash, and the restaurant’s security camera system. Early the next morning,
Beres was caught on video in a car with a White male when he used the
restaurant owner’s credit card at a gas station. Beres admitted in social
media messages that she had been present during the Jersey Joe’s burglary.
Beres was further charged in counts 3 and 4 with misdemeanor
methamphetamine possession under Health and Safety Code section 11377,
subdivision (a), and misdemeanor possession of paraphernalia (id., § 11364,
subd. (a)).
The information also alleged that Beres had suffered a prior strike
conviction (§§ 667, subds. (b) through (j), 1170.12) in 2010 for residential
burglary (§§ 459, 460, subd. (a)), that she had served prior prison terms in
connection with four prior convictions (§ 667.5, subd. (b)), and that her prior
convictions made her ineligible for probation (§ 1203, subd. (e)(4)).
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The count arising from the Jersey Joe’s burglary (count 1) was
dismissed as part of the negotiated plea, with a Harvey waiver (People v.
Harvey (1979) 25 Cal.3d 754), and the drug charges (counts 3 and 4) were
also dismissed. Beres was advised of her trial rights and waived them and
pleaded nolo contendere to the Flavor Restaurant burglary charge (count 2).
She admitted the prior strike conviction, the prior prison term allegations,
and the probation ineligibility clause. She agreed to allow the sentencing
judge to impose a sentence no greater than 16 months in prison, with the
understanding that the judge would consider a postplea Romero motion to be
filed by Beres’s counsel. (People v. Superior Court (Romero) (1996) 13 Cal.4th
497.)
At sentencing on November 8, 2019, the court heard and denied the
Romero motion. Defense counsel, both in oral argument and in a written
motion, argued that the current offense was not serious or violent, the prior
strike was remote (2010), and though it was for residential burglary, no one
had been injured. He tied Beres’s past crimes to her drug addiction,
described her past and continuing efforts to achieve sobriety and improve her
prospects, and argued that her criminal record was “not that significant.” He
noted she had successfully completed parole on her prior convictions.
The district attorney countered, both in written opposition and in oral
argument on the motion. He noted that Beres, at age 38, had an extensive
criminal record. The deputy who argued the motion disagreed that Beres’s
record was “not significant” in that she had 12 prior felony convictions and
numerous misdemeanors, emphasizing that “in a short period of time she
picked up a significant number of crimes and has been given the opportunity
to change and has not.” Beres admitted four prior felony convictions (two
counts of second degree burglary (§§ 459, 460, subd. (b)), one count of
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unlawful driving of another’s vehicle (Veh. Code, § 10851, subd. (a)), and one
count of residential burglary (§§ 459, 460, subd. (a)) by reason of her
admission to the allegations under sections 667.5, subdivision (b), and 1203,
subdivision (e)(4).
The judge disagreed with Beres’s counsel that the current offense was
not serious, pointing out that commercial burglaries have a “significant
impact on the community” and on the small business owners victimized by
such conduct. He called Beres’s prior record “really, really bad.” He noted
that sometimes, when she had a “break between convictions,” it was because
Beres was in custody during those periods.
Relying especially on People v. Strong (2001) 87 Cal.App.4th 328, which
held there must be extraordinary reasons for finding that a career criminal
falls outside the spirit of the law (id. at pp. 332, 336–340, 347), the judge
denied the Romero motion, denied probation, and sentenced Beres to
16 months in prison consecutive to a term she was already serving based on
offenses committed in Santa Clara County. He imposed a restitution fund
fine of $300 (plus a 10 percent administrative fee) (§ 1202.4, subds. (b), (l )), a
parole revocation fine of $300 (suspended unless parole were later revoked)
(§ 1202.45, subds. (a), (c)), a court operations fee of $40 (§ 1465.8), and a
criminal conviction assessment of $30 (Gov. Code, § 70373). He ordered
preparation of a restitution report by the probation department. Finally, he
granted Beres four days of actual credit for local custody on this offense and
four days of conduct credit. (§ 4019, subd. (f).) The court modified the
judgment on December 20, 2019, to provide for restitution of $6,354 to the
owner of Flavor Restaurant and reserved jurisdiction to determine the
amount of restitution for the Jersey Joe’s victim.
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II. DISCUSSION
Under Anders v. California (1967) 386 U.S. 738, appellate counsel
suggests the denial of the Romero motion may be an issue that would merit
briefing on appeal. We have considered that point and decline to order
briefing.
The question before the court on the Romero motion was whether
Beres, in light of her current crime and her criminal history, background,
character, and prospects, should be deemed outside the spirit of the three
strikes law and, hence, should be treated as though she had not suffered the
prior strike conviction. (People v. Williams (1998) 17 Cal.4th 148, 161.)
Resolution of a Romero motion lies within the discretion of the sentencing
judge. (Romero, supra, 13 Cal.4th at p. 504; § 1385, subd. (a).) In this case,
the judge offered sound reasons for denying the motion. Beres did have a
“really bad” record, and the 16-month sentence (one-third the middle term,
doubled because of the strike prior) was not extreme for the conduct involved.
Beres did not demonstrate that she fell outside the spirit of the three strikes
law. (Williams, at p. 161.) There is no viable argument that the judge
abused his discretion. (Id. at p. 152 [abuse of discretion standard applies on
appeal].) We agree with appellate counsel’s assessment that the Romero
issue did not merit briefing on appeal.
We have reviewed the whole record and see no irregularities in the
postplea proceedings that would support a meritorious argument on appeal.
III. DISPOSITION
The judgment is affirmed.
STREETER, J.
WE CONCUR:
POLLAK, P. J.
TUCHER, J.
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