P. v. Montoya

Filed 3/7/07 P. v. Montoya CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. John D. Oglesby, Judge.

William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

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On May 15, 2006, at approximately 10:30 p.m. a Kern County Sheriffs deputy interviewed Javier Navarro who reported that while he was gone from his house, someone cut his chain link fence and took his dirt bike from his yard. The deputy saw tire marks and followed them to a nearby residence. The deputy contacted the occupant who told him that he saw appellant, Michelle Anne Montoya, push the dirt bike through Navarros chain link fence and walk toward him to ask for help putting air in a tire. After inflating the tire, Montoya left with the dirt bike.

On May 16, 2006, Navarro contacted the deputy and told him that the bike was at a certain residence. The deputy went to the residence and was told that Montoya took the bike there and left it, after she was told to leave.

On May 17, 2006, the district attorney filed a complaint charging Montoya with vehicle theft (Veh. Code,  10851, subd. (a)) and alleging that she had a prior conviction within the meaning of the three strikes law (Pen. Code,  667, subds. (b)-(i)).

On May 24, 2006, Montoya pled no contest to vehicle theft and admitted the prior strike conviction in exchange for a lid of 32 months (the mitigated term of 16 months, doubled to 32 months because of Montoyas prior strike conviction).

On June 26, 2006, Montoya filed a Romero^[1]motion asking the court to strike the prior conviction allegations.

On July 6, 2006, the court denied Montoyas motion finding that although the prior strike conviction occurred in 1995, and was thus 10 years old, Montoya continued to reoffend. Montoya then indicated that she wanted to withdraw her plea, and the court appointed a different public defender to represent her.

On July 27, 2006, the court relieved defense counsel and appointed still another attorney to represent Montoya.

On August 7, 2006, defense counsel filed a motion for reconsideration of Montoyas Romero motion, arguing that her record was not that serious and that granting the motion would allow the court to commit Montoya to the California Rehabilitation Center.

On August 24, 2006, prior to arguing in favor of the motion to reconsider Montoyas Romero motion, defense counsel noted that Montoya had withdrawn her request to withdraw her plea. The court then denied the motion to reconsider and sentenced her in accord with the plea bargain to a 16-month term, doubled to 32 months because of Montoyas prior conviction.

Montoyas appellate counsel has filed a brief which summarizes the facts, with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Montoya has not responded to this courts invitation to submit additional briefing.

Following independent review of the record, we find that no reasonably arguable factual or legal issues exist.

The judgment is affirmed.

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^*Before Cornell, Acting P.J., Gomes, J. and Kane, J.

^[1]People v. Superior Court (Romero) (1996) 13 Cal.4th 497.