Filed 1/7/15 P. v. Romero CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065310

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCS264116)

JONATHAN ROMERO,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Stephanie

Sontag, Judge. Affirmed.

         Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.

         Jonathan Romero and his codefendant, Antonio Jose Delatorre, were charged in a

felony complaint with one count of unlawful possession of a deadly weapon while
confined in a penal institution (Pen. Code,1 § 4502, subdivision (a)). The complaint also

alleged that Romero had suffered numerous probation denial priors within the meaning of

section 1203, subdivision (e)(4), and three prior strike convictions within the meaning of

the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12).

       On June 3, 2013, Romero pleaded guilty to unlawful possession of a deadly

weapon, and the balance of the allegations against him were dismissed. Although he

stipulated in the guilty plea form to a two-year prison sentence that would run

consecutively to the sentence he was currently serving for his conviction of attempted

robbery in case No. SCS257782, the prosecutor informed the court during the July 2013

sentencing hearing in the current case that because the offense had occurred in county jail

rather than in prison, the most time Romero could be ordered to serve in custody would

be one year (one-third of the three-year midterm sentence) consecutive to his sentence in

the other case. Consequently, the court sentenced Romero in the current case to a one-

year prison term to be served consecutively to the 16-month term he was serving in the

other case.

       In December 2013 Romero was resentenced in the instant case because the court

determined his original one-year sentence was not available in that he had already

completed the sentence imposed in case No. SCS257782 when he was sentenced in the

instant case. The court and the parties agreed that Romero would withdraw his original

guilty plea and be allowed to plead guilty to the lesser offense of manufacturing a



1      All further statutory references are to the Penal Code.
                                             2
weapon while incarcerated in prison in violation of section 4502, subdivision (b). The

court granted Romero's motion to withdraw his guilty plea. Romero then pleaded guilty

to a violation of section 4502, subdivision (b), in exchange for the lower term sentence of

16 months in prison with presentence credits back to June 3, 2013, the date he had been

released on parole in case No. SCS257782. The balance of the allegations against him

were again dismissed. The court sentenced Romero to the stipulated 16-month prison

term.

        Romero in propria persona requested a certificate of probable cause. There is no

record of the court's granting or denying this request.

        Counsel has filed a brief asking this court to review the record for error as

mandated by People v. Wende (1979) 25 Cal.3d 436. We affirm the judgment.

                               FACTUAL BACKGROUND2

        A. The People's Case

        During the evening on February 11, 2013, at the San Diego Central Jail, sheriff's

deputies conducted a search of the cell shared by Romero and Delatorre. During a search

of the bottom bunk, one of the deputies discovered an envelope on which Delatorre's

name was written. The envelope was unusually heavy. When the deputy opened it, he

found a six-inch metal rod with a sharpened point.

        During the search of the top bunk, the deputy found a bag that had Romero's name

and booking number on it. The deputy opened it because it, too, was unusually heavy.



2       The following statement of facts is based on information in the probation report.
                                              3
Inside the bag the deputy found another six-inch rod with a sharpened point. The deputy

identified both objects as shanks, which are instruments used by inmates to stab jail staff

members or other inmates.

       Romero and Delatorre were interviewed regarding the shanks found in their cell.

Delatorre indicated he had obtained the metal rod from the multipurpose room in House

No. 3 of the jail. He then told the deputies that he and Romero had manufactured the

rods into shanks. Delatorre claimed that he had no plan to use the weapon to attack

anyone and that he just wanted it to protect himself from other inmates. Romero refused

to give a statement.

                                      DISCUSSION

       Appointed appellate counsel has filed a brief summarizing the proceedings below.

Counsel presents no argument for reversal, but asks this court to review the record for

error as mandated by People v. Wende, supra, 25 Cal.3d 436. Pursuant to Anders v.

California (1967) 386 U. S. 738, counsel refers to the following as a possible, but not

arguable, issue: "Was [Romero's] guilty plea involuntary because he would not have pled

guilty and accepted the 16-month sentence if he had been informed that [] section 1170,

subdivision (d), forbade the trial court from both recalling his sentence after 120 days

from the first sentencing and from imposing a higher sentence on remand, and was

defense counsel ineffective for failing to so advise [Romero] or did the trial court

lawfully impose the new sentence because the prior imposed sentence was unlawful, and

could therefore be corrected, even if it was increased, at any time?"



                                             4
       On August 27, 2014, we granted Romero permission to file a brief on his own

behalf. He has not responded.

       A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436, and

Anders v. California, supra, 386 U.S. 738, including the possible issue raised by

appellate counsel, has disclosed no reasonably arguable appellate issue. When Romero

originally pleaded guilty to the original charge of unlawful possession of a deadly

weapon while confined in a penal institution (§ 4502, subdivision (a)), he stipulated to a

two-year consecutive prison sentence. Romero later withdrew that guilty plea and

pleaded guilty to the lesser charge of manufacturing a weapon while incarcerated in

prison in violation of section 4502, subdivision (b) in exchange for the lower stipulated

term of 16 months in prison nunc pro tunc as of June 3, 2013, the date of Romero's

original guilty plea, with credits for time served. Romero's stipulated 16-month prison

sentence is for a shorter term than the stipulated two-year term he accepted when he first

pleaded guilty to the greater offense of unlawful possessing a deadly weapon while

confined in a penal institution (§ 4502, subdivision (a).) Romero has been represented

adequately by appellate counsel.




                                             5
                                  DISPOSITION

      The judgment is affirmed.


                                                NARES, Acting P. J.

WE CONCUR:


AARON, J.


IRION, J.




                                       6
