Fear Not Law Articles: P. v. Thimmes

P. v. Thimmes

Filed 2/7/07 P. v. Thimmes 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THE PEOPLE,

Plaintiff and Respondent,

DAVID MICHAEL THIMMES,

Defendant and Appellant.

H030709

(Santa Clara County

Super. Ct. No. EE403678)

Defendant David Michael Thimmes pleaded no contest to one felony count of possessing cocaine (Health & Saf. Code, § 11350, subd. (a)), and to four misdemeanors. He admitted one prior strike conviction. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.)[1] Defendant's plea was conditioned upon his being sentenced to no more than 32 months in prison.

The trial court denied defendant's Romero[2]motion and sentenced defendant to the agreed-upon maximum of 32 months in prison. In defendant's first appeal, this court reversed the judgment and remanded the matter with instructions to hold another Romero hearing. (People v. Thimmes (2006) 138 Cal.App.4th 1207, 1213-1214 (Thimmes).)[3] On remand, the trial court again declined to strike defendant's prior conviction and reinstated the judgment.

Defendant appeals from the reinstated judgment. He claims the trial court committed reversible error in failing to order the preparation of a supplemental probation report before deciding whether to exercise its discretion to strike the prior conviction allegation. We conclude that defendant has waived the claim.

I. Factual and Procedural Background

Defendant was arrested in 2004 because he was driving by the residence of his former wife, in violation of a restraining order she had obtained against him. Cocaine and drug-related paraphernalia were found in his vehicle. The complaint charged defendant with felony possession of cocaine and four misdemeanors and alleged one prior strike conviction. The prior strike was a 1999 conviction for making a criminal threat (§ 422). (Thimmes, supra,138 Cal.App.4th at p. 1210.)

Defendant pleaded no contest to all counts. A probation report was prepared. Two psychological reports were attached to the report. Both indicated that defendant's cognitive function was low and that the relatively recent break with his wife had further impaired his functioning. The probation report acknowledged that the strike offense was â€

Description	Defendant pleaded no contest to one felony count of possessing cocaine (Health and Saf. Code, S 11350, subd. (a)), and to four misdemeanors. He admitted one prior strike conviction. (Pen. Code, SS 667, subds. (b) (i), 1170.12.) Defendant's plea was conditioned upon his being sentenced to no more than 32 months in prison. The trial court denied defendant's Romero motion and sentenced defendant to the agreed-upon maximum of 32 months in prison. In defendant's first appeal, this court reversed the judgment and remanded the matter with instructions to hold another Romero hearing. (People v. Thimmes (2006) 138 Cal.App.4th 1207, 1213-1214 (Thimmes).)[3] On remand, the trial court again declined to strike defendant's prior conviction and reinstated the judgment. Defendant appeals from the reinstated judgment. He claims the trial court committed reversible error in failing to order the preparation of a supplemental probation report before deciding whether to exercise its discretion to strike the prior conviction allegation. Court conclude that defendant has waived the claim.
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