P. v. Olivas

Filed 2/21/06 P. v. Olivas CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Colette M. Humphrey, Judge.

David L. Saine and Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant was arrested and charged with possession of a firearm by a felon (Pen. Code,^[1] § 12021, subd. (a)(1)); possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); use of a false document to conceal his true citizenship or resident alien status (§ 114); and false representation to a peace officer (§ 148.9, subd. (a)). Defendant eventually entered a negotiated plea agreement. Under the agreement, defendant pled no contest to the count of possessing a firearm and the remaining counts were dismissed. Defendant also admitted to having three prior strike convictions (§§ 667, subds. (c)-(j) and 1170.12, subds. (a)-(e)) and one prior prison term (§ 667.5, subd. (b)), but moved the sentencing court to dismiss the prior strikes pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court denied the Romero motion and sentenced defendant to a prison term of 25 years to life.

In this appeal, defendant challenges his three strikes sentence on several grounds, including that the court abused its discretion in denying his Romero motion and the three strikes law constitutes cruel and unusual punishment. We agree, however, with defendant's contention, raised in supplemental briefing, that his counsel rendered ineffective assistance by failing to investigate and ascertain that defendant had only two, not three, prior strike convictions and allowing defendant to admit a nonexistent strike conviction. Accordingly, we remand to the trial court for reconsideration of defendant's Romero motion and for resentencing following preparation and consideration of a new probation report.

FACTUAL HISTORY^[2]

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