P. v. JOHN

Filed 4/26/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

A five-count complaint charged defendant David Michael Thimmes with possession of cocaine (Health & Saf. Code, § 11350, subd. (a), count 1), being under the influence of a controlled substance (id., § 11550, subd. (a), count 2), possession of paraphernalia (id., § 11364, count 3), and violation of a protective order (Pen. Code, § 273.6, subd. (a), counts 4 and 5).[1] Count 1 was the only felony charged. The complaint also alleged one prior strike conviction. (§§ 667, subds. (b)-(i) and 1170.12 (the Three Strikes law).) Pursuant to a court-negotiated agreement, defendant pleaded no contest to all five counts and admitted the strike allegation in exchange for a promise of no more than 32 months in prison.

At sentencing, the trial court denied defendant's Romero[2] motion and sentenced defendant to the agreed-upon maximum of 32 months. The term represents the mitigated term for the possession conviction, doubled for the strike offense. (Health & Saf. Code, § 11350, subd. (a); §§ 667, subds. (b)-(i), 1170.12.)

On appeal, defendant argues that he received ineffective assistance of counsel because the trial court denied his Romero motion based upon a mistake of law to which his counsel failed to object.

We shall reverse and remand the matter with instructions to the trial court to hold another Romero hearing.

I. Facts

At the time of his arrest on July 12, 2004, defendant was 52 years of age. The victim of the restraining order violations was defendant's wife of nearly 20 years. The victim had filed for divorce less than a year before. She had obtained a restraining order against defendant because of his persistent emotional and verbal abuse of her and his history of threatening others. Defendant continuously violated the restraining order and had five convictions for those violations. He was placed on probation in each case. Defendant was arrested in the instant case after the victim discovered him driving by her residence. The arresting officer observed that defendant appeared to be under the influence of a stimulant. Cocaine and drug-related paraphernalia were found in defendant's vehicle. Defendant was charged as described above.

The strike offense alleged in the complaint was a 1999 conviction for making a criminal threat (§ 422). Defendant had been bothered by construction near his residence. On the date of the crime, defendant confronted one of the workers about putting up a tarpaulin. He stated: â€