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Filed 12/ 28 /20 P. v. Beres CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent,

v. MELI S SA MARIA BERES, Defendant and Appellant. A159292 (San Mateo County Super. Ct. No. 17

- SF

- 004575

- A)

In September 20 19, Meli s sa Maria Beres was convicted by plea of no contest to a commercial burglary (Pen. Code, § § 459, 460 , subd. ( b ) ) 1 of Flavor Restaurant in Half Moon Bay in November 2016 , as part of a negotiated disposition that resolved several other charges as well

. She was sentenced to 16 months in prison , consecutive to a sentence of eight years, eight months
that she was already serving f or convictions in Santa Clara County

. She now appeals from her sentence and postplea orders

. H er attorney has filed a brief raising no issues , in accordance with the procedure prescribed in People v. Wende (19 79 ) 25 Cal.3d 436

. We shall affirm the conviction and sentence.

1 Further undesignated statutory references are to the Penal Code unless otherwise indicated.2 I. BACKGROUND With respect to the Flavor Restaurant burglary (count 2 ) , a sheriff’s investigation showed that on or about November 17 , 2016, Beres had driven a truck to the restaurant to help an accomplice tr ansport a safe containing $500 in cash that he and another accomplice had removed from the

restaurant premises. Several of the restaurant’s cash drawers had also been knocked over and emptied. The burglars had pried open the glass f r ont doors to the rest aurant to gain access. Beres was also charged with a second count of commercial burglary (count 1 ) based on a similarly

- executed burglary of Jersey Joe’s Restaurant in Half Moon Bay approximately two weeks earlier , in that the front glass door
to the restaurant w as smashed to allow the burglars entry

. The burglars pried open an interior office door and took the owner’s credit card, $1,000 in cash, and the restaurant’s security camera system

. Early the next morning, Beres was caught on video in a car with a W hite male when he used the

restaurant owner’s credit card at a gas station

. Beres admitted in social
media messages that she had been present during th e Jersey Joe’s burglary.
Beres was further charged in counts 3 and 4 with misdemeanor methamphetamine possession under Health and Safety Code section 11377, subdivision (a) , and misdemeanor possession of paraphernalia ( i d

. , § 11364 , subd

. (a) )

. The information also alleged t hat Beres had suffered a prior strike
conviction (§ § 667, subds. (b) through (j), 1170.12) in 2 010 for residential burglary (§ § 459, 460 , subd. (a) ) , that she had served prior prison terms in connection with four prior convictions (§ 667.5, subd. ( b )) , and that her prior convictions made her ineligible for p robation ( § 1203, subd. (e)(4) )

.3

The count arising from the Jersey Joe’s burglary (count 1 ) was dismissed as part of the negotiated plea , with a Harvey waiver ( People v. Harvey (19 79 ) 25 Cal. 3d 754 ) , and the drug charges (counts 3 and 4 ) were also dismissed

. Beres was advised of her trial rights and waived them and ple a d ed no lo conte ndere to the Flavor Restaurant burglary charge (count 2)

. She admitted the prior strike conviction , the prior prison term allegations, and the probation ineligibility clause. She agreed to allow the sentencing judge to impose a sentence no greater than 16 months in prison , with the understanding that t he judge would consider a postplea Romero motion to be filed by Beres’s counsel. ( People v. Superior Court ( Romero ) (19 96 ) 13 Cal.4th
497 .) At sentencing on November 8, 2019, the court heard and denied the
Romero motion. Defense counsel , both in oral argument and in a written motion, argued tha t the current offense was not serious or violent, the prior strike was remote (2010) , and though it was for residential burglary, no one had been injured

. He tied Beres’s past crimes to her drug addiction , described her past and continuing efforts to achieve sobriety and improve her prospects , and argued that her criminal record was “not that significant.” He noted she had successfully completed parole on her prior conviction s

. The district attorney countered , both in written opposition and in oral

a rgument on the motion. He noted that Beres, at age 38, had an extensive
criminal record. The deputy who argued the motion disagreed that Beres’s
record was “ not significant ” in that she had 12 prior felony convictions and numerous misdemeanors , emphasizing that “ in a short period of time she picked up a significant number of crimes and has been given the opportunity

to change and has not. ” Beres admitted four prior felony co nvictions ( two counts of second degree burglary (§§ 459, 460, subd. (b)) , one co unt of4

unlawful driving of another’s vehicle (Veh. Code, § 10851 , subd. (a) ) , and one count of residential burglary ( §§ 459, 460, subd. (a) ) by reason of her
admission to the allegation s under section s 667.5 , subdivision (b) , and 1203 , subdivision (e)(4)

. The judge disagreed with Beres’s counsel that the current offense was not serious, pointing out that commercial burglaries have a “significant impact on the community” and on the small business owner s victimized by such conduct

. H e called Beres’s prior record “really, really bad.” He noted that sometimes, when she had a “break between convictions , ” it was because
Beres was in custody during those periods. Relying especially on People v. Strong (2001) 87 Cal.App.4 t h 328 , which held there must be extraordinary reasons for finding that a career criminal f a ll s outside the spirit of the law ( id . at p p

. 332, 336

– 340, 347 ), the judge
denied the Romero motion, denied probation, and sentenced Beres to
16 months in prison consecutive to a term she was already serving based on offenses committed in Santa Clara County. He imposed a restitution fund fine of $300 (plus a 10 percent adm inistrative fee) (§ 1202.4, subd s

. (b) , ( l ) ) , a parole revocation fine of $300 (s uspended unless parole were later revoked) (§ 1202.45 , subds. (a), (c) ) , a court operation s fee of $40 ( § 1 465.8) , and a criminal conviction assessment of $30 (Gov. Code, § 70373)

. H e ordered preparation of a restitution report by the probation department

. Finally, he granted Beres four days of actual credit for local custody on this offense and four days of conduct credit. (§ 4019 , subd. (f) .) The court modified the judgment on December 20, 2019, to provide for restitution of $6,354 to the owner of Flavor Restaurant and reserv ed jurisdiction to determine t he amount of restitution for the Jersey Joe’s victim.5 II. DISCUSSION
Under Anders v. California (1967) 386 U.S. 738, a ppellate counsel

s uggests the denial of the Romero motion may be an issue that would merit briefing on appeal. We have considered that point and decline to order briefing. The question before the court on the Romero motion wa s whether
Beres , in light of her current crime and her criminal history, background,
character , and prospects, should be deemed outside the spirit of the t hree

s trikes law and, hence, should be treated as though she had not suffered the prior strike conviction. ( People v. Williams (1998) 17 Cal.4th 148, 161 .)
Resolution o f a Romero motion lies within the discretion of the sentencing judge

. ( Romero , supra , 13 Cal.4th at p. 504 ; § 1385 , subd. (a) .) In this case, the judge offered sound reasons for denying the motion. Beres did have a “really bad” record , and the 16

- month sentence (one

- third the middle term, doubled because of the strike prior) was not extreme for the conduct involved. Beres did not demonstrate that she fell outside the spirit of the three strikes
law. ( Williams , at p. 161 .) There is no viable argument t hat the judge abused his discretion. ( Id. at p. 152 [abuse of discretion standard applies on appeal].) We agree with appellate counsel’s assessment that the Romero issue did not merit briefing on appeal

. We have reviewed the whole record and see no irregularities in the postplea proceedings that would support a meritorious argument on appeal. III. DISPOSITION The judgment is affirmed. STREETER, J. WE CONCUR: POLLAK, P. J. TUCHER , J.