P. v. Bean-Mehlsen

Filed 7/19/06 P. v. Bean-Mehlsen CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In this appeal, defendant Bryan Christopher Bean-Mehlsen contends that the trial court erred in denying his Romero^[1] motion to strike his prior juvenile conviction for robbery. He assigns as error the court's failure to have considered all mitigating factors in the exercise of its discretion on the motion. We conclude that the trial court did not abuse its discretion and we therefore affirm the order.

STATEMENT OF THE CASE

I. The Instant Offenses

On October 6, 2004, a California Highway Patrol Officer observed a black motorcycle traveling on an off-ramp near Jackson Avenue in San Jose.[2] The officer performed a registration check on the motorcycle and was advised that the vehicle had been stolen. The officer initiated a traffic stop and the driver, later identified as defendant, immediately came to a stop, got off the motorcycle and dropped it, and fled on foot through a nearby parking lot. The officer chased defendant and gave several unheeded commands to stop. As defendant continued to flee, he jumped a fence and entered an apartment complex, where the officer lost visual sight of him. Other officers arrived on the scene and they located defendant hiding in the backyard of a residence, where he was arrested.

Defendant was charged by amended complaint with vehicle theft with a prior conviction (Veh. Code, § 10851, subd. (a); Pen. Code, § 666.5);[3] resisting a peace officer, a misdemeanor (§ 148, subd. (a)(1)); and possession of burglary tools, also a misdemeanor (§ 466). The complaint further alleged one prior juvenile strike conviction within the meaning of sections 667, subdivisions (b) through (i), and 1170.12 for robbery (§§ 211-212.5, subd. (b); Welf. & Inst. Code, §§ 602, 707, subd. (b)) and three prior prison term commitments under section 667.5, subdivision (b). The prison priors were one conviction for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and two convictions for vehicle theft (Veh. Code, § 10851, subd. (a)).

Defendant later entered into a negotiated disposition, pleading no contest to all charges and admitting all prior conviction allegations. He was permitted the opportunity to file a Romero motion to strike the juvenile strike prior in an effort to avoid the doubling of his state prison sentence. And he was promised that his sentence would not exceed four years. The matter was then put over for a probation report and for the hearing on the Romero motion.

II. Defendant's Romero Motion

Defendant filed his Romero motion requesting that the court exercise its discretion under section 1385, subdivision (a), to strike his prior juvenile conviction. The motion and its attachments, consisting mostly of letters from defendant and his family members, presented information about defendant's background, character, and prospects. It essentially contended that his criminal violations as an adult were not violent, serious, or significant, and that for several years he had been in the process of becoming a law-abiding, responsible citizen when his life was suddenly derailed and he was thrust back into drugs and criminality. The motion asserted that the prior strike conviction was ancient history, having occurred some 16 years before in 1989, as a result of which defendant served three years at the California Youth Authority. The conviction arose out of an incident in which defendant was one of a group of six individuals â€