Field ( 2013 )

Field 6/26/13 P. v. Omara CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G047500
v. (Super. Ct. No. 05WF3313)
MICHAEL ARMOND OMARA, OPINION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County,
M. Marc Kelly, Judge. Affirmed.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
* * *
1. Introduction
In a prior appeal, we concluded the trial court has discretion under Penal
Code section 1385, subdivision (a) to strike a prior serious or violent felony conviction in
order to award additional presentence custody credit under an amended version of Penal
Code section 4019 in effect between January 25 and September 28, 2010 (Amended
Section 4019). (People v. Omara (Apr. 5, 2012, G044820) [nonpub. opn.] (Omara I).)
As a consequence, we reversed an order denying Michael Armond Omara’s motion to
strike priors and remanded for the trial court to determine whether to exercise that
discretion in reconsidering Omara’s motion. After remand, the trial court reconsidered
the motion and denied it.
By this appeal, Omara challenges the trial court’s order declining to strike
one or more prior convictions following remand from Omara I. The appeal is authorized
because Omara first presented his claim for additional presentence custody credit to the
trial court (Pen. Code, § 1237.1) and because the trial court’s order affected his
substantial rights (id., § 1237, subd. (b); People v. Gainer (1982) 133 Cal.App.3d 636,
642).
Appointed counsel filed a brief pursuant to People v. Wende (1979) 25
Cal.3d 436 (Wende), setting forth the facts of the case and requesting that we review the
entire record. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), appointed
counsel suggested we consider one issue, which we address in section 3. Omara was
granted 30 days to file written arguments in his own behalf, but did not file anything.
We have examined the entire record and counsel’s Wende/Anders brief.
We looked for issues other than those raised by counsel, but after considering the entire
record, we have found no reasonably arguable issue. (Wende, supra, 25 Cal.3d 436.) We
therefore affirm.
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2. Background
In 2007, Omara was convicted of one count of receiving stolen property
(Pen. Code, § 496d, subd. (a) [count 1]) and one count of possession of controlled
substance paraphernalia (Health & Saf. Code, § 11364 [count 2]). In January 2009, the
trial court conducted a bifurcated hearing on the allegation Omara had suffered prior
serious and violent felony convictions. (Pen. Code, §§ 667, subds. (d) & (e)(2)(A),
1170.12, subds. (b) & (c)(2)(A).) On the prosecution’s motion, the court dismissed one
of the prison prior offenses and, on the defense’s motion, struck one of the two prior
strike convictions. The court found the remaining two prior conviction allegations to be
true.
The trial court pronounced judgment on the same day as the hearing. The
court sentenced Omara to eight years in prison, comprised of the upper term of six years
on count 1 and a consecutive one-year sentence on each prison prior offense, and
suspended sentence on count 2. Omara was awarded 1,025 actual days and 512 conduct
days of custody credit for a total of 1,537 days of presentence custody credit. Omara
appealed from the judgment, and we affirmed.
In December 2010, Omara brought, on an ex parte basis, a motion to strike
priors. He argued that the trial court had discretion to strike his prior serious or violent
felony convictions for the purpose of calculating his custody credits and that he was
entitled to additional credit pursuant to Amended Section 4019. The trial court denied
the motion, concluding it did not have the power to strike a prior conviction under Penal
Code section 1385 “once a state prison sentence is carried out.” Because Omara had
suffered a prior conviction involving a serious or violent felony, he was ineligible for the
additional presentence custody credit under Amended Section 4019. Omara appealed.
In Omara I, we reversed and remanded. We stated: “We conclude only
that a trial court has discretion to strike a prior serious or violent felony conviction in
order to award presentence custody credit under Amended Section 4019. We remand for
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the trial court to determine whether to exercise that discretion in reconsidering the
Motion to Strike Priors.” (Omara I, supra, G044820.)
Following remand, the trial court again declined to strike prior convictions.
The court stated: “I’m not going to exercise any additional discretion to award [Omara]
any additional credits because I feel that he’s already received the benefit of everything in
my analysis in my original sentence.”
3. Analysis of Suggested Issue in Counsel’s Wende/Anders Brief
Appointed counsel suggests this potential issue: “Did the trial court abuse
its discretion when it denied [Omara]’s motion to strike a prior conviction in order to
award [Omara] additional pre-sentence conduct credits under the amended version of
Penal Code section 4019?” (Boldface & some capitalization omitted.)
We have reviewed the entire record and find nothing to suggest the trial
court abused its discretion. The trial court stated on the record it considered Omara’s
entire record and imposed what the court concluded was the appropriate sentence.
4. Disposition
The order is affirmed.
FYBEL, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
MOORE, J.
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