Filed 10/31/14 P. v. Auguletto CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E060982

v.                                                                       (Super.Ct.No. SWF1301523)

DARIUS MERLE AUGULETTO,                                                  OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge.

Affirmed.

         Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant and appellant Darius Merle Auguletto pled guilty to driving or

taking a stolen vehicle (Veh. Code, § 10851, subd. (a); count 1); receiving a stolen

vehicle (Pen. Code, § 496d, subd. (a); count 2); misdemeanor resisting a peace officer



                                                             1
(Pen. Code, § 148, subd. (a)(1); count 3); misdemeanor driving under the influence of

alcohol or a controlled substance (Veh. Code, § 23152, subd. (a); count 4); and

misdemeanor driving on a suspended license (Veh. Code, § 14601.2, subd. (a); count 5).

Defendant also admitted that he had suffered one prior serious and violent felony strike

conviction, to wit, a 1995 robbery within the meaning of Penal Code section 667,

subdivisions (c) and (e)(1), and section 1170.12, subdivision (c)(1). In return, defendant

was sentenced to a term of 32 months in state prison with credit for time served.

Defendant appeals from the judgment, challenging the sentence or other matters

occurring after the plea. We find no error and affirm.

                                              I

                   FACTUAL AND PROCEDURAL BACKGROUND1

       On May 13, 2013, after confirming a truck defendant was driving had been

reported stolen, an officer activated the lights of his patrol unit and attempted to make a

vehicle stop. Defendant pulled the truck into a driveway, exited the vehicle, and fled,

jumping over several fences. Defendant was eventually located in the backyard of a

home. Following five pressure punctures for failing to follow the officer’s directives,

defendant was apprehended. Officers noted that defendant had displayed objective signs

and symptoms of being under the influence of a controlled substance. Defendant later

admitted that he had used methamphetamine within the last 48 hours.




       1   The factual background is taken from the probation report.


                                              2
       On June 28, 2013, a felony complaint was filed charging defendant with driving or

taking a stolen vehicle (Veh. Code, § 10851, subd. (a); count 1); receiving a stolen

vehicle (Pen. Code, § 496d, subd. (a); count 2); misdemeanor resisting a peace officer

(Pen. Code, § 148, subd. (a)(1); count 3); misdemeanor driving under the influence of

alcohol or a controlled substance (Veh. Code, § 23152, subd. (a); count 4); and

misdemeanor driving on a suspended license (Veh. Code, § 14601.2, subd. (a); count 5).

The complaint also alleged that defendant had suffered one prior serious and violent

felony strike conviction, to wit, a 1995 robbery within the meaning of Penal Code

section 667, subdivisions (c) and (e)(1), and section 1170.12, subdivision (c)(1).

       On January 9, 2014, defendant pled guilty to all the charges and admitted the prior

strike conviction allegation with a maximum lid of 32 months in state prison. The trial

court also allowed defendant to file a motion to dismiss his prior strike conviction

allegation pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497

(Romero). At that time, the court indicated, without any guarantees, that it would

seriously consider striking defendant’s prior strike conviction in light of its age and

defendant’s positive conduct during the intervening years. After directly examining

defendant, the trial court found that defendant understood the nature of the charges and

the consequences of the plea; that the plea was entered into freely, voluntarily,

knowingly, and intelligently; and that there was a factual basis for his plea.

       On February 5, 2014, defendant filed his Romero motion and documents in

support of his motion.



                                              3
       The hearing on the Romero motion was heard on February 20, 2014. At that time,

the court advised defendant of a possible conflict. The court noted that it may have

handled defendant’s prior 1995 robbery strike conviction, but that it had no memory of it.

As such, the court offered to recuse itself; however, defendant chose to continue and

waived any conflict. Thereafter, citing the age of the prior strike conviction and

defendant having maintained sobriety and worked in a productive manner for a long

period of time, the court struck defendant’s prior strike conviction, finding him outside

the scheme of the “Three Strikes” law. The court then agreed to continue the sentencing

hearing to have defendant evaluated for possible participation in the Riverside Substance

Abuse Treatment (RSAT) program.

       On March 4, 2014, the court was informed that defendant had been rejected from

the RSAT program due to his custodial behavior. The court noted its inclination to set

aside the Romero decision in light of defendant’s behavior. Defense counsel insisted the

information before the court was hearsay at that time. As such, the court granted

defendant’s request to continue the matter to conduct additional research into defendant’s

behavior while in custody. The court indicated that should the information be presented

in an admissible manner, the court would reconsider its Romero decision since defendant

had not been sentenced yet and the court generally had discretion to revisit any

sentencing within 180 days.

       On March 28, 2014, following a discussion with the parties in chambers, the court

was informed that defendant’s disqualifying behavior included his possession of a shank,



                                             4
his involvement in a jail fight, and getting himself booked into custody under a false

name. In light of this information, the court, following argument from the parties, set

aside its earlier Romero decision striking defendant’s prior strike conviction, and finding

defendant did not fall outside the spirit of the Three Strikes law. The court, thereafter,

denied defendant probation and sentenced him to 32 months in state prison. The court

awarded defendant a total of 190 days credit for time served.

       On April 14, 2014, defendant filed a notice of appeal, challenging the sentence or

other matters occurring after the plea.

                                              II

                                          DISCUSSION

       After defendant appealed, upon his request, this court appointed counsel to

represent him. Counsel has filed a brief under the authority of People v. Wende (1979)

25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of

the case, a summary of the facts and potential arguable issues, and requesting this court

conduct an independent review of the record.

       We offered defendant an opportunity to file a personal supplemental brief, and he

has not done so.

       Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

independently reviewed the entire record for potential error and find no arguable error

that would result in a disposition more favorable to defendant.




                                              5
                                     III

                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                               RAMIREZ
                                                         P. J.
We concur:



McKINSTER
                       J.



MILLER
                       J.




                                      6
