Filed 10/8/13 P. v. Chavez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E058687

v.                                                                       (Super.Ct.No. FVI03804)

MICHAEL EDWARD CHAVEZ,                                                   OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Michael A. Smith,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

         Leslie Ann Rose, under appointment by the Court of Appeal, for Defendant and

Appellant.

         No appearance for Plaintiff and Respondent.




                                                             1
       Defendant and appellant Michael Edward Chavez was charged by information

with first degree residential burglary (Pen. Code, § 459, count 1)1, robbery (§ 211, counts

2 & 3), and false imprisonment by violence (§ 236, counts 4 & 5). The information also

alleged that he had two prior strike convictions. (§§ 1170.12, subds. (a)-(d) and 667,

subds. (b)-(i).) Defendant entered a plea agreement and pled guilty to count 1 and

admitted the two prior strikes. In accordance with the plea agreement, the court

sentenced him to 25 years to life in state prison and dismissed the remaining counts.

       Defendant filed a petition for resentencing under section 1170.126, known as the

Three Strikes Reform Act of 2012 (Prop. 36, as approved by voters, Gen. Elec. (Nov. 7,

2012)). The trial court denied the petition.

       Defendant filed a timely notice of appeal. We affirm.

                            PROCEDURAL BACKGROUND

       On March 5, 1996, pursuant to a plea agreement, defendant pled guilty to first

degree residential burglary (§ 459) and admitted two prior strike convictions (§§ 1170.12,

subds. (a)-(d) & 667, subds. (b)-(i)). The court sentenced him to state prison for 25 years

to life in accordance with the agreement.

       On January 22, 2013, defendant, in pro. per., filed a petition for resentencing

under section 1170.126. On March 14, 2013, the court denied the petition since




       1 All further statutory references will be to the Penal Code, unless otherwise
indicated.


                                               2
defendant’s current conviction was for a serious offense, which made him ineligible for

resentencing under section 1170.126. (§ 1170.126, subd. (e)(1).)

                                        ANALYSIS

       After the notice of appeal was filed, this court appointed counsel to represent

defendant. 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 brief statement of the facts, and identifying one potential arguable issue: whether

the trial court erred in denying defendant’s petition for resentencing under section

1170.126.

       Defendant was offered an opportunity to file a personal supplemental brief, which

he has done. In his brief, defendant first asserts that his two prior strike convictions were

for assault with a firearm (§ 245, subd. (a)(2)), which “can be committed in multiple

ways and . . . because the record does not disclose how the offense(s) were committed[,]

the court must presume the convictions[s] [were] for the least serious form of the

offense.” Defendant goes on to contend that the prosecution “did not satisfy the elements

of a recidivist statute enhancement,” citing People v. Delgado (2008) 43 Cal.4th 1059.

Defendant appears to be arguing that the prosecution failed to establish that his prior

assault convictions qualified as serious felonies under the Three Strikes law. (See Id. at

pp. 1065-1066.) Defendant’s claim is meritless. He admitted that he suffered two prior

strike convictions for assault with a firearm. (§ 245, subd. (a)(2).) Moreover, assault

with a firearm is a serious felony. (§ 1192.7, subd. (c)(31).)



                                              3
       Defendant next asserts that he never had a hearing pursuant to People v. Superior

Court (Romero) (1996) 13 Cal.4th 497 (Romero). He now requests that we remand the

matter for such hearing to be held. Defendant apparently wishes to have his plea

agreement set aside so he can request the trial court to exercise its discretion to strike his

prior strikes. We note that defendant’s plea arose out of a plea bargain agreed to by him

and the People, in which he pled guilty, admitted his two prior strike convictions, and

agreed to the term of 25 years to life. The court sentenced defendant to 25 years to life in

accordance with the agreement. We conclude that “defendant’s express agreement to

imposition of a [25-year-to-life] term precludes a remand for the purpose of obtaining a

lesser term by virtue of the trial court’s striking of [a] prior offense.” (People v.

Cunningham (1996) 49 Cal.App.4th 1044, 1048; see also People v. Cepeda (1996) 49

Cal.App.4th 1235, 1239-12402 [appellant was estopped from complaining that he was

entitled to a Romero remand for resentencing, since he had entered a plea bargain].)

       Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent

review of the record and find no arguable issues.




       2Overruled on other grounds as stated in People v. Mendez (1999) 19 Cal.4th
1084, 1097-1098.


                                               4
                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                               HOLLENHORST
                                                         Acting P. J.


We concur:


McKINSTER
                       J.


MILLER
                       J.




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