Filed 12/21/17 P. v. Gomez CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID ANTHONY GOMEZ,
Defendant and Appellant.

A151424

(Lake County
Super. Ct. No. CR945004)


Appellant David Anthony Gomez appeals a judgment entered upon his plea of no contest to possession of a nunchaku (Pen. Code, § 22010) and his admission that he had served three prior prison terms. (§ 667.5, subd. (b).) His appellate counsel has raised no issues and asks this court to independently review the record to determine whether there are any sentencing or other post-plea issues. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was notified of his right to personally file a supplemental brief, but he has not done so. We have reviewed the record, found no arguable issues, and therefore affirm the order.
BACKGROUND
By complaint filed December 13, 2016, appellant was charged with one count of possessing a weapon known as a nunchaku (§ 22010) and one count of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The complaint also alleged appellant had served seven prior prison terms (§ 667.5, subd. (b)) and had 14 probation denial prior felony convictions (§ 1203, subd. (e)(4)). The probation report reflects that appellant was on Post Release Community Supervision (PRCS) when he committed the current offenses.
On February 14, 2017, appellant entered an open plea of no contest to the count of possessing a weapon known as a nunchaku, admitted he had served three prior prison terms, and admitted he had violated the terms of his PRCS. The parties stipulated the factual basis for the plea was that, on December 9, 2016, officers of the Clearlake Police Department conducting a search of appellant’s residence in appellant’s presence discovered a pair of nunchaku; appellant acknowledged he owned the nunchaku, and he acknowledged they were a weapon he was prohibited from possessing. At the district attorney’s request, the court dismissed the remaining count and allegations charged in the complaint in exchange for appellant’s plea, and appellant waived time for sentencing.
On March 22, 2017, appellant filed a sentencing memorandum, which included a statement of mitigation, requesting that the court find unusual circumstances permitting a grant of probation. (See § 1203, subd. (e)(4) [“Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to” any person who has been twice previously convicted of a felony in California].) Appellant advised that he had been sexually assaulted at the ages of seven and nine, suffered from post-traumatic stress disorder, had several other unspecified mental health issues and a long history of drug abuse, and had been incarcerated for 26 of his 51 years. Following his previous release from prison, appellant advised, he applied, and was accepted, to a residential drug treatment program in San Francisco designed for individuals leaving prison, but the probation department instead directed him to complete a less expensive local out-patient drug treatment program. The circumstances of the current offense were less serious than those typically present in other such cases, appellant maintained, because he had no recent record of committing similar crimes of violence, and there was no indication he used the nunchaku to threaten or harm anyone; rather, he told the officers he used them to work out. (See Cal. Rules of Court, rule 4.413(c)(A).) Ordinarily, possession of nunchaku would be a probation eligible felony, appellant observed, and probation would be appropriate here, he contended, because he had otherwise engaged with PRCS supervisors, regularly reported to them, had no other violations, and had actively sought drug treatment. (Rules 4.413(c)(1)(B), 4.423(b)(4).) Further, appellant submitted, the conduct underlying his offense was partially excusable, because he had struggled his entire adult life with substance abuse, had sought inpatient drug treatment, but was referred instead to outpatient treatment, thereafter relapsed, and then resumed a past practice of using nunchaku to exercise. (Rule 4.423(a)(4).) His lifelong drug addiction should be considered a mental or physical condition that significantly reduced his culpability for the crime, appellant asserted,
and his offense, possession of nunchaku, was a manifestation of the illness. (Rule 4.423(b)(2).) He immediately acknowledged wrongdoing at the time of his arrest, appellant pointed out, and he entered a plea early in the proceedings. (Rule 4.423(b)(3).)
The case was called for sentencing on March 27, 2017, and the parties presented their arguments. Appellant reiterated that unusual circumstances justified granting him probation, and advised that the residential drug treatment program in San Francisco would still accept him if the court granted his request. The People opposed the request, contending that the circumstances were not unusual, and that appellant was faulting others rather than taking personal responsibility for his own misfortune. After the parties’ concluded their arguments, the court weighed the relevant factors affecting probation and denied appellant’s request. It then sentenced appellant to an aggregate term of six years in state prison, consisting of the upper term of three years on count one, with three one-year enhancements for his three prior prison terms, and a concurrent term of 180 days for violation of the terms of his PRCS. The court awarded appellant a total of 217 days of pretrial custody credit, which, it found, completed his 180-day sentence terminating that PRCS. The court advised appellant he would be on PRCS for up to three years following his completion of the new prison term. It ordered appellant to pay a restitution fine of $1,800, imposed and stayed an additional restitution fine of $1,800 in the event PRCS was revoked following his release, and imposed a previously stayed restitution fine of $1,680 because the prior PRCS had been revoked. Appellant also was ordered to pay standard court operations and conviction assessments totaling $70. Appellant then filed a timely notice of appeal.
DISCUSSION
We have examined the entire record and are satisfied that appellant’s counsel has fully complied with her responsibilities and that no arguable issues exist. (See People v. Wende, supra, 25 Cal.3d 436; People v. Kelly (2006) 40 Cal.4th 106.) There was a factual basis for appellant’s plea, and there is no clear and convincing evidence of good cause to allow appellant to withdraw his plea. Appellant was adequately represented by counsel at every stage of the proceedings. There was no sentencing error. There are no meritorious issues that require further briefing or argument.
DISPOSITION
The judgment is affirmed.







_________________________
Rivera, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Streeter, J.























People v. Gomez (A151424)