P. v. Chidester

Filed 9/25/07 P. v. Chidester CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Jesse Howard Chidester III appeals from a judgment imposing a two-year prison sentence upon his plea of no contest to attempted unlawful taking of a vehicle and his admission of a prior strike. His attorney has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 requesting this court to independently review the record, which we have done. Defendant was advised of his right to file a supplemental brief but has not done so. We shall affirm.

Following the filing of a complaint and defendants waiver of a preliminary hearing, defendant was charged by information with attempted unlawful taking and driving a vehicle (Veh. Code,  10851, subd. (a); Pen. Code,  664) and with possession of a controlled substance. (Health & Saf. Code,  11375, subd. (b).) The information also alleged as to the former that defendant had previously been convicted of first degree burglary (Pen. Code,  459), a serious or violent felony under Penal Code section 1170.12, and of two additional felonies for which he had been imprisoned, not remaining free of custody within a period of five years within the meaning of Penal Code section 667.5, subdivision (b). Following the trial courts acceptance of defendants waiver of his constitutional trial rights, which the court found to be knowing, intelligent and voluntary, the court advised defendant on the record that he had been promised that he would receive the midterm sentence here. Because of the prior strike, that would be two years, and all counts other than the count you plead to would be dismissed. Defendant acknowledged that he had been promised nothing else, and entered a no contest plea to the attempted Vehicle Code violation. Defendant was subsequently sentenced in accordance with the plea bargain to two years in state prison (double the midterm of one year), with combined credit for 267 days. The court imposed a $400 restitution fund fine, a stayed $400 parole violation fine, and a $20 court security fee. Defendant filed a timely notice of appeal, specifying My lawyer Ms. Linkous did not file a Ramaro [sic] motion to surpress [sic] my strike.

Defendant was at all times represented by counsel and we find in the record nothing to suggest that counsels representation was ineffective. The record indicates that the probation department recommended and the prosecutor initially insisted upon a three-year sentence, which counsel negotiated down to two years, accomplished in part by dismissing the two enhancements under Penal Code section 667.5. Counsel did not file a motion to strike the two-strike enhancement as authorized in People v. Superior Court (Romero) (1996) 13 Cal.4th 497, but in light of defendants prior criminal record there is no realistic possibility that application of the statute to him would be deemed outside the spirit of the statute. (See People v. Williams (1998) 17 Cal.4th 148, 161.) As summarized in the probation report, defendant has an extensive criminal record, dating back to 1968, which includes two prison commitments. His numerous theft-related convictions are likely attributable to his continued drug use. He has been afforded opportunities in the past to address his substance abuse issues and has squandered those opportunities. Defendant thus suffered no prejudice from his attorneys failure to file what undoubtedly would have been a futile motion.

The judgment is affirmed.

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Pollak, J.

We concur:

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McGuiness, P. J.

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Siggins, J.

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