Filed 12/31/19 P. v. Lester CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

JESS ALLEN LESTER,

Defendant and Appellant.

A157648

(Napa County

Super. Ct. Nos. CR131449, CR116311)

Defendant entered a no contest plea to criminal threats and misdemeanor violating a protective order and admitted two prior strike allegations. The trial court struck one of the strike allegations, and sentenced defendant to four years in state prison. Defendant filed his own notice of appeal challenging the denial of his counsel’s motions in limine. We affirm.

BACKGROUND

Because this case was resolved by plea, we briefly summarize the facts from the probation report.

On September 6, 2006, the victim received a phone call from defendant, her ex-boyfriend, stating, “Are you ready to die?” The victim reported to police that she and defendant had broken up two years earlier after he made previous threats to her and, as a result, he was placed on probation. In addition, she reported there was an active restraining order preventing him from contacting or communicating with her. The victim did not know defendant’s whereabouts but thought he might be living in Oregon. According to defendant, he had been living in various places in California and Oregon, working in construction with several companies and making money “under the table” over the past years. He stated he plans to continue working once he is released from custody.

In January 2019, the Napa County District Attorney filed an information charging defendant with one felony count of criminal threats (Pen. Code, § 422), and one misdemeanor count of violating a domestic violence criminal protective order (§ 166, subd. (c)(1)). It was further alleged that defendant suffered two prior strike convictions. (§ 667, subds. (b)–(i).) Once the court ruled on numerous motions in limine, the trial began with voir dire. After voir dire was completed, the jury was sworn, and pre-instructions were given, defendant entered a plea of no contest “to the sheet” (all the offenses and allegations). The plea was open to the court with no agreement as to the sentence, although the court indicated it would consider dismissing the prior strike allegations.

Defendant filed a motion to strike the prior allegations pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. At sentencing, the court granted the Romero motion in part, by striking one of the two prior strike allegations. In granting the motion, the court noted the strike was roughly 14 years old, and defendant was “not out committing crimes for the past 12 years or so because . . . he was essentially a fugitive from justice for that period of time.” The court took into account, however, the impact defendant’s conduct had on the victim and her life. Having reviewed the old case file and the victim impact statement in that case, the court found it “quite clear that [the victim] was terrorized by Mr. Lester for a period of years up until now where she’s had to constantly be looking over her shoulder.” The court further found those criminal threats dating back to 2005 were significant, showing a level of sophistication, and the victim was “particularly vulnerable.” After weighing these factors, the court concluded it was in “the interest of justice to strike one of the two prior criminal threat convictions.”

The court sentenced defendant to the midterm of two years, doubled to four years by virtue of the remaining strike conviction and imposed a $300 restitution fine under section 1202.4 and a $300 fine under section 1202.45, suspended unless parole is revoked. The court also imposed a court operations assessment of $80 (§ 1465.8) and a conviction assessment of $60 (Gov. Code, § 70373).

DISCUSSION

Defendant’s appointed counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436, setting forth a statement of the case, and requesting this court conduct an independent review of the record. Counsel has notified defendant he can file a supplemental brief with the court. No supplemental brief has been received. Pursuant to People v. Kelly (2006) 40 Cal.4th 106, we have independently examined the record to see if any arguable issue is present. We have found none.

By entering a plea of no contest, defendant admitted the sufficiency of the evidence establishing the crimes, and therefore is not entitled to review of any issue that goes to the question of his guilt or innocence. (People v. Hunter (2002) 100 Cal.App.4th 37, 42.) Without a certificate of probable cause, defendant cannot contest the validity of his pleas; the only issues cognizable on appeal are issues relating to the validity of a denial of a motion to suppress or issues relating to matters arising after the pleas were entered. (§ 1237.5; Cal. Rules of Court, rule 8.304(b)(4).) Defendant has not raised any such issues in his notice of appeal.

Defendant was ably represented by counsel throughout the proceedings including at sentencing.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

 

____________________________

Margulies, Acting P. J.

We concur:

_____________________________

Banke, J.

_____________________________

Sanchez, J.

A157648

People v. Lester