Filed 1/11/18 P. v. Guluarte CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT


THE PEOPLE,

Plaintiff and Respondent,

v.

JOHN MARK GULUARTE,

Defendant and Appellant.
H044666
(Santa Cruz County
Super. Ct. No. F28422)
Defendant John Mark Guluarte pleaded no contest to first degree burglary (Pen. Code, § 459), and he admitted that he had a prior serious felony conviction that also qualified as a strike (§ 667, subds. (a), (b)-(i)). The trial court sentenced defendant to nine years in prison.
On appeal, defendant’s appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) that states the case and facts, but raises no issue. We notified defendant of his right to submit written argument on his own behalf within 30 days. That period has elapsed and we have received no response from defendant.
Pursuant to Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106 (Kelly), we have reviewed the entire record. Following the California Supreme Court’s direction in Kelly, supra, at page 110, we provide a brief description of the facts and the procedural history of the case.
BACKGROUND
On April 10, 2015, sheriff’s deputies responded to a report of a prowler at a residence. The reporting party told deputies that she saw a male, later identified as defendant, walking around the back deck. After he walked to the front of the house, she asked him what he was doing. Defendant told her that he was looking at the view of the trees from the back deck. The reporting party eventually went inside the house. She saw defendant walk towards the back of the house, and then he came back in sight carrying a jacket. He rang the front doorbell and then left on a bicycle. Law enforcement later found defendant with items from the residence.
A. Charges and Plea
In June 2015, defendant was charged by information with first degree burglary (§ 459). The information alleged that the burglary was a serious felony and a violent felony. The information further alleged that defendant had two prior serious felony convictions that also qualified as strikes (§ 667, subds. (a), (b)-(i)), and that he had served two prior prison terms (§ 667.5, subd. (b)).
On February 2, 2017, defendant pleaded no contest to first degree burglary (§ 459), and he admitted that he had one prior serious felony conviction that qualified as a strike (§ 667, subds. (a), (b)-(i)). Defendant entered his plea and admissions with the understanding that the burglary count was a serious but not a violent felony offense, that the prosecution would seek a nine-year term at sentencing, that defendant could file a Romero motion seeking the dismissal of the strike and the imposition of a seven-year term, and that the remaining allegations would be submitted for dismissal at the time of sentencing.
B. Romero Motion
In April 2017, defendant filed a sentencing memorandum in which he requested that the trial court dismiss his prior strike pursuant to section 1385 and Romero, supra, 13 Cal.4th 497. Defendant contended that his prior strike conviction occurred almost 17 years ago, that he pleaded guilty to the offense due to family pressures, that he had not committed a violent crime since that time, and that the property taken in the instant burglary offense had no monetary value and was recovered from him at the time of his arrest. Defendant also argued that he had been abused by his mother when he was a child, which resulted in his removal from her care by child protective services. He also contended that he had suffered trauma as an adult when his young son died in 2013. Defendant contended that he had participated in many self-help programs, had volunteered, and that during his current incarceration he had actively participated in all classes that were available. In support of his request to dismiss the prior strike conviction, defendant provided a letter from his mother who acknowledged that he had been removed from her care, letters from friends regarding his background and character, documents regarding his participation in jail programs, and a resume showing his work skills.
The prosecution opposed defendant’s request to dismiss his prior strike conviction. The prosecution argued that defendant had a more than 20-year criminal history beginning in 1994; that his prior convictions included robbery, residential burglary, trespassing, theft, violating a court order, driving while intoxicated, driving with a suspended license, and hit and run; and that he had left “countless victims in his wake.” The prosecution stated that defendant had two prior strike convictions, and that the instant offense, a residential burglary, was a serious felony strike.
Regarding the prior strike conviction for robbery, which defendant admitted he had suffered, the prosecution contended that the offense occurred in 2000, when defendant pushed his way into the 83-year-old victim’s residence while armed with a handgun. According to the prosecution, defendant taped the victim’s hands and arms, gave the gun to an accomplice, and demanded money. Defendant found $4 and a pistol in the victim’s pocket. During the robbery, the victim’s roommate unsuccessfully attempted to enter the apartment. Defendant put his hand over the victim’s mouth and moved him to a back room. Defendant and his accomplice eventually fled but were later apprehended. Witnesses reported that defendant and his accomplice believed the victim had a large amount of marijuana, which defendant apparently intended to steal.
The prosecution contended that defendant had an earlier prior strike conviction, based on a 1994 residential burglary. According to the prosecution, several items, including electronics and appliances, were taken from a residence. Defendant was later found with items that had been taken from the residence.
The prosecution argued that defendant had been placed on probation or parole numerous times, and that he had violated the conditions each time. In particular, his second strike offense was committed while he was on parole, and the instant offense was committed while he was on parole. The prosecution contended that defendant was at “high risk to reoffend,” that he did not fall outside the spirit of the Three Strikes law, and that he should be sentenced to the maximum term provided under the plea bargain.
C. Probation Officer’s Report
The probation officer’s report indicated that defendant had been convicted of more than a dozen felonies and misdemeanors between 1994 and 2015. The probation officer stated that defendant “has a history of being on parole and probation. He exhibits a pattern of non-compliance and disregard for others. He has not successfully completed supervision and had acquired numerous violations while on supervision.” The probation officer further stated that defendant’s current offense was “consistent with his patterns of crimes,” and that he was on parole at the time. The probation officer believed defendant “fails to follow directives and over the years has made basically no progress and no apparent effort to make changes in his life.”
D. Sentencing and Appeal
On May 12, 2017, the trial court heard argument regarding defendant’s Romero motion. Defense counsel contended that defendant had participated in programs as much as possible while in custody, and that the instant offense did not involve an intent to “really burglarize the property” but rather involved defendant “inadvertently [having] little trinkets in his pocket.” In opposition, the prosecutor referred to the facts of defendant’s prior strike conviction for robbery and argued that his criminal history, which “just goes on and on and on,” reflected his prospects and character. In a statement to the court, defendant described his background, including his battle with alcoholism.
The trial court denied the Romero motion. The court explained that defendant had a “serious [robbery] prior” strike conviction, his current offense was a serious felony, and he had “a long history of repeated offenses and not completing probation or parole whatsoever.” The court sentenced defendant to nine years in prison. The sentence consists of four years (double the lower term) for the burglary and five years for the prior serious felony enhancement. (See §§ 461, subd. (a), 667, subd. (a), (b)-(i).) The court granted custody credits and ordered defendant to pay a fine and various fees. The remaining allegations were dismissed.
Defendant filed a timely notice of appeal and a request for request for certificate of probable cause regarding the denial of his Romero motion. The court granted the request for the certificate. We appointed counsel to represent defendant in this court.
DISCUSSION
Having carefully reviewed the entire record, we conclude that there are no arguable issues on appeal other than the corrections of the clerical errors in the minute orders and the abstract of judgment. (Wende, supra, 25 Cal.3d at pp. 441-443.)
DISPOSITION
The judgment is affirmed.
The minute order regarding the February 2, 2017 hearing is ordered corrected by deleting all references to defendant admitting a prior prison term allegation (Pen. Code, § 667.5, subd. (b)).
The minute order regarding the May 12, 2017 sentencing hearing is ordered corrected: (1) to indicate that two prior prison term allegations (Pen. Code, § 667.5, subd. (b)) were stricken, and (2) to delete the reference to defendant being sentenced for a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)).
The abstract of judgment is ordered corrected to delete the reference to a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)). The clerk of the superior court is ordered to send a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.



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BAMATTRE-MANOUKIAN, J.





WE CONCUR:




_________________________________
PREMO, ACTING P.J.









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GROVER, J.













People v. Guluarte
H044666