P. v. Braman

 

 

 

 

 

 

 

 

 

Filed 6/25/13  P. v. Braman CA1/4

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

 

FIRST
APPELLATE DISTRICT

 

DIVISION
FOUR

 

 
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THE PEOPLE,             Plaintiff and Respondent, v. ROBERT LEE BRAMAN,             Defendant and Appellant.

A135345         (Napa County       Super. Ct. No. CR158559)

 

            Appellant,
Robert Lee Braman, was charged with possessing
methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and href="http://www.fearnotlaw.com/">possessing a syringe (Bus. & Prof.
Code, § 4140, a misdemeanor).  It
was also alleged that appellant suffered a prior strike (Pen. Code, § 667,
subds. (b)-(i)), and a prior prison term (Pen. Code, § 667.5, subd.
(b)). 

            Pursuant
to a plea agreement, appellant pled no contest to the possession of
methamphetamine charge and admitted the prior strike.  The misdemeanor and the prior prison were
dismissed.

            At
sentencing, appellant’s motion to strike the strike was denied, as was
probation.  On the possession of
methamphetamine conviction, appellant was sentenced to the low term of 1 year
and 4 months, doubled for the strike, for a total of 32 months. 

            Appellant’s
sole contention on appeal is that the trial court abused its discretion in
failing to strike appellant’s prior “strike” conviction.  The prior was a 1984 robbery conviction.  In exercising its discretion, the court
stated:  “. . . I looked at this very
closely but I just simply don’t see it in the href="http://www.mcmillanlaw.com/">interests of justice under [Penal Code]
section 1385 to grant the Romerohref="#_ftn1" name="_ftnref1" title="">[1] motion.  In particular in light of what we have over
the last 10 years where we have a repeated sentence to href="http://www.fearnotlaw.com/">state prison, and the motion under >Romero is denied.” 

            >The trial court did not abuse its discretion
by declining to strike the prior

>            conviction

            A
Romero motion is subject to review
for abuse of discretion.  (>People v. Williams (1998) 17 Cal.4th
148.)  The appellant bears the burden of
showing that the decision to decline to strike a “strike” was arbitrary and
irrational.  (People v. Carmony (2004) 33 Cal.4th 367, 374, 376.)  Appellant has not carried that burden.

            The
present conviction was appellant’s 20th felony conviction.  Since his “strike” conviction, appellant has
committed 14 felonies, including the present offense.  During that time, appellant has been
sentenced to state prison nine times.  As
counsel for appellant candidly concedes, appellant is “clearly a
recidivist.”  Not surprisingly, appellant
was evaluated in the probation report as a “high risk to reoffend.” 

            In
short, there is nothing in appellant’s record to recommend the striking of the
strike, and certainly no abuse of discretion on the part of the trial court in
denying the invitation to do so.

            The
judgment is affirmed.

 

                                                                                    _________________________

                                                                                    REARDON,
J.

 

We concur:

 

 

_________________________

RUVOLO, P. J.

 

 

_________________________

HUMES, J.