Filed 9/26/18 P. v. Gunning 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
JOSEPH BENJAMIN GUNNING,
Defendant and Appellant.
| H045649 (Santa Clara County Super. Ct. No. C1778184) |
Defendant Joseph Benjamin Gunning pleaded guilty to felony vehicle theft (Veh. Code, § 10851, subd. (a)(1)) and misdemeanor flight from a pursuing peace officer (Veh. Code, § 2800.1, subd. (a)). He also admitted that he had a prior felony conviction that qualified as a “strike” (Pen. Code. §§ 667, subds. (b)-(i), 1170.12).[1] At sentencing, the trial court dismissed the prior strike allegation (see People v. Superior Court (Romero) (1996) 13 Cal.4th 497), placed Gunning on probation for a term of three years, and ordered him to serve one year in the county jail.
We appointed counsel to represent Gunning on appeal. Appellate counsel filed an opening brief stating the case and the facts but raising no specific legal issues. Counsel has declared that she notified Gunning both of her intention to request independent review under People v. Wende (1979) 25 Cal.3d 436 (Wende) and of his right to file written argument on his own behalf. We twice attempted to notify Gunning of this right, but our efforts to locate him have been unsuccessful. Other than the filing of the notice of appeal, we have not received any communication directly from Gunning.
We have reviewed the record under Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106. Concluding there is no arguable issue on appeal, we affirm the judgment.
I. STATEMENT OF THE FACTS AND CASE
On November 18, 2017, at around 5:15 a.m., an employee of the Valley Transportation Authority (VTA) reported to Santa Clara County Sheriff Deputies that a man had driven away in a VTA bus that the employee had left idling while she was moving a car parked in the bus’s parking space.[2] The deputies located the stolen bus using a GPS (global positioning system) device. Gunning was driving the bus. Deputies initiated a vehicle stop, but, instead of getting out the bus, Gunning drove away. Deputies followed the bus and were eventually able to stop it outside of the Hayes Mansion in San Jose. After initially refusing to do so, Gunning turned off the bus, threw the keys out of the window, and got out. Gunning was taken into custody. The VTA bus, which sustained no damage, had a value of $70,000.
On November 22, 2017, Gunning was charged with felony theft of a vehicle (Veh. Code, § 10851, subd. (a); count 1); misdemeanor flight from a pursuing peace officer (Veh. Code, § 2800.1, subd. (a); count 2); and misdemeanor driving while unlicensed (Veh. Code, § 12500, subd. (a); count 3). The complaint also alleged that defendant had a prior strike conviction for criminal threats in violation of section 422 (§§ 667, subds. (b)-(i), 1170.12). On January 11, 2018, Gunning pleaded guilty to felony theft of a vehicle (Veh. Code § 10851, subd. (a)) and misdemeanor flight from a pursuing peace officer (Veh. Code, § 2800.1, subd. (a)). He also admitted the strike prior. Gunning entered his pleas and admission on the understanding that the trial court would not sentence him to longer than 32 months in state prison.[3] During the plea hearing, the trial court addressed Gunning directly: “We’ve had discussions in chambers about your case. Based on that discussion, I indicated that if you enter a plea to count 1 and 2, admitted the strike prior, that it would be a 32-month top. [¶] I indicated that the Romero motion based on the information provided has merit. If I granted the Romero motion to strike the prior strike conviction, I indicated the probability was probation with up to a year in the county jail” and supervision in Veterans’ Court. In addition, count 3 would be dismissed at the time of sentencing.
It appears from the record that neither party filed a written sentencing memorandum. The Santa Clara County Probation Department prepared a probation report that discussed the facts of Gunning’s offense, his criminal history, and an analysis of legal factors relevant to Gunning’s sentencing, including his Romero motion. At the sentencing hearing on February 27, 2018, the trial court indicated that it had “reviewed and considered all of the information provided and believes this is an appropriate case to exercise its discretion and strike the prior strike conviction.” In particular, the court noted that Gunning’s current offense was neither serious nor violent, was less serious than the facts of the strike conviction, did not involve a weapon, and did not result in any monetary loss to the VTA. The court also observed that Gunning had accepted responsibility for his crime, suffered from a longstanding substance abuse problem, was willing to comply with the terms of probation, and had prospects of employment “in the electrician area.” Based on these factors, the trial court exercised its discretion and struck the prior strike allegation.
The trial court further found, pursuant to California Rules of Court, rule 4.413(c)(1)(A), that “the facts or circumstances giving rise to the limitation on probation in this case [are] less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant [does not have a] recent record of committing similar crimes.” The court elected to place Gunning on three years of formal probation. The court ordered Gunning to serve one year in the county jail, which could not be modified by another judge. The court awarded Gunning 102 days of actual custody credits and 102 days of conduct/work credits pursuant to section 4019, totaling 204 days of custody credits. The court imposed a number of conditions of probation, including substance abuse and mental health treatment conditions, and assessed fines and fees. The court set a probation review date for Gunning. Count 3 was dismissed.
Defendant filed a timely notice of appeal on March 7, 2018.
II. DISCUSSION
We have conducted an independent review of the record pursuant to Wende, supra, 25 Cal.3d at pp. 441-443 and find that there is no arguable issue on appeal.
III. DISPOSITION
The judgment is affirmed.
_____________________________________
DANNER, J.
WE CONCUR:
_________________________________
GREENWOOD, P.J.
_________________________________
GROVER, J.
People v. Gunning
[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] These facts are taken from the probation report and from the trial court’s statements at Gunning’s sentencing.
[3] The plea form does not include the plea condition that the sentence would not be longer than 32 months, but it does state, “Romero has merit, 1 year C[ounty] J[ail]” with supervision in Veterans’ Court.
