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Filed 2/5/24 P. v. Narvaez CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

THE PEOPLE,

Plaintiff and Respondent,

v.

ROMMEL NARVAEZ,

Defendant and Appellant.

 A168482

 (San Mateo County

 Super. Ct. No. SC078039A)

Defendant appeals from a judgment of conviction and sentence after he 

entered a no contest plea to second degree robbery (Pen. Code, § 212.5, subd.

(c); count 1);

1 admitted a weapon enhancement pursuant to section 12022.5;

and admitted a prior strike offense under section 1170.12, subdivision (c)(1). 

Defendant’s attorney asks that we independently review the record under 

People v. Wende (1979) 25 Cal.3d 436 (Wende). We find no arguable issues 

and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On August 20, 2013, the San Mateo County District Attorney filed an 

amended information alleging that on April 8, 2013, defendant committed 

one count of robbery (§ 212.5, subd. (c); count 1) and one count of assault with 

1 All further statutory references are to the Penal Code unless 

otherwise indicated.
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a firearm against victim J.C. (§ 245; count 2). The amended information also 

alleged enhancements for the personal use of a firearm, under sections

12022.53, subdivision (b) and 12022.5, subdivision (a), and for a prior strike 

and a prior serious felony conviction in 2011 (§§ 667, subd. (a), 1170.12, subd. 

(c)(1)).

2

On September 30, 2013, defendant was released on bail pending trial. 

On December 2, 2013, defendant failed to appear for trial and a bench 

warrant was issued.

On August 31, 2016, defendant was arrested and again released on 

bail. A jury trial began on May 30, 2018. On the fifth day of the jury trial, a 

mistrial was declared after the trial judge learned defendant had contacted 

jurors during the trial. Defendant was charged with jury tampering in a 

separate action and held without bail.

While in custody on the two pending cases, defendant was arrested for 

making fraudulent claims to the Employment Development Department, for 

unemployment benefits.

On January 13, 2023, defendant agreed to a negotiated disposition of 

all three matters. As to the robbery case, defendant submitted a signed

document entitled “Declaration Concerning a Plea or Change of Plea to 

Guilty or Nolo Contendere,” stating he was changing his plea to 

nolo contendere on second degree robbery (§ 212.5, subd. (c); count 1) and 

admitting the section 12022.5 firearm enhancement and the prior strike 

(§ 1170.12, subd. (c)(1)) in exchange for a sentence range between 9 and 16 

years, consecutive to the other two cases. The declaration acknowledged that 

2 The amended information also alleged a robbery and assault with a 

firearm on April 7, 2013, against victim K.C. However, the People later 

dismissed these counts based on a lack of jurisdiction.
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defendant’s plea was made freely and voluntarily and that he was giving up 

his rights to trial by jury, to confront witnesses, to subpoena witnesses, and 

to remain silent. At the plea hearing on January 13, 2023, defendant 

confirmed his signature on the plea form, that he had not been forced to enter 

the plea, and that he was waiving his constitutional rights. The defendant 

also confirmed that he understood the maximum penalty for entering a plea 

to robbery and a prior strike is up to 20 years in prison. He entered a 

no contest plea to robbery (§ 212.5; count 1), admitted the firearm 

enhancement (§ 12022.5, subd. (a)), and admitted the prior strike and prior 

serious felony based on an April 30, 2011 robbery conviction (§ 212.5, subd. 

(c)). Defense counsel stipulated to the factual basis for the plea.

The trial court found a factual basis for defendant’s plea, found his plea 

and admissions were freely and voluntarily entered, and found defendant 

guilty based upon the plea.

At sentencing, defendant requested that the trial court sentence him to 

nine years and exercise its discretion, under section 1385 and People v. 

Superior Court (Romero) (1996) 13 Cal.4th 497, to dismiss the prior strike. 

The trial court denied the Romero motion, concluding that the interests of 

justice did not support dismissing the prior strike and that to do so would 

result in a substantial risk of serious bodily injury in the commission of 

another offense. The trial court sentenced defendant to 10 years in prison, 

comprised of the middle term of three years for robbery (§§ 212.5, subd. (c),

213, subd. (a)(2)) doubled based on the prior strike (§ 1170.12, subd. (c)(1)),

plus the middle term of four years on the firearm enhancement (§ 12022.5). 

The court awarded defendant 2,312 days of presentence credit, comprised of 

2,011 actual days in custody plus 301 days of conduct credits. Defendant was 

also ordered to pay a $300 restitution fine; a $40 court operations 
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assessment; a $30 criminal conviction fee; and a $300 parole revocation 

restitution fine, which was stayed pending successful completion of parole.

Defendant filed a notice of appeal based on the sentence or matters 

occurring after the plea that do not affect the validity of the plea (Cal. Rules 

of Court, rule 8.304(b)) and on the “denial of motions for reasonable bail.” As 

to the latter ground, defendant sought and was denied a certificate of 

probable cause.

DISCUSSION

Defendant’s counsel submitted a declaration with the opening brief 

stating that he advised defendant that he would be filing a Wende brief and 

that defendant could personally file a supplemental brief within 30 days to 

raise any matters he wished to bring to the court’s attention. The 30-day 

period has expired, and we have not received any supplemental brief or 

correspondence from defendant.

Section 1237.5 requires a defendant to obtain a certificate of probable 

cause from the trial court to appeal from a judgment of conviction upon a plea 

of guilty or nolo contendere. (People v. Shelton (2006) 37 Cal.4th 759, 766.) 

Shelton explains that “ ‘[d]espite this broad language, we have held that two 

types of issues may be raised on appeal following a guilty or nolo plea without 

the need for a certificate: issues relating to the validity of a search and 

seizure, for which an appeal is provided under . . . section 1538.5, 

subdivision (m), and issues regarding proceedings held subsequent to the 

plea for the purpose of determining the degree of the crime and the penalty to 

be imposed.’ ” (Ibid.) The trial court denied defendant’s request for a 

certificate of probable cause. Nothing in the record indicates any issues 

regarding the validity of a search and seizure. Thus, our review is limited to 
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issues regarding the proceedings held subsequent to the plea and the penalty 

imposed.

The trial court has discretion to dismiss a prior strike conviction in 

furtherance of justice under section 1385. (§ 1385, subd. (a); People v. 

Superior Court (Romero), supra, 13 Cal.4th at pp. 529–530.) In considering 

whether to exercise its discretion, the trial court “must consider whether, in 

light of the nature and circumstance of his present felonies and prior serious 

and/or violent felony convictions, and the particulars of his background, 

character, and prospects, the defendant may be deemed outside the scheme’s 

spirit, in whole or in part, and hence should be treated as though he had not 

previously been convicted of one or more serious and/or violent felonies.” 

(People v. Williams (1998) 17 Cal.4th 148, 161.) We review the court’s 

decision on whether to dismiss a prior strike under the deferential abuse of 

discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 375–377.)

We have examined the entire record and are satisfied that defendant’s 

attorney fully complied with his responsibilities and that there are no 

arguable issues on appeal. (Wende, supra, 25 Cal.3d at pp. 440–441.) The 

trial court properly considered the relevant factors of the nature and 

circumstances of defendant’s current offense and record and did not abuse its 

discretion when it denied defendant’s request to dismiss his prior strike.

DISPOSITION

The judgment is affirmed.

Jackson, P. J.

WE CONCUR:

Simons, J.

Burns, J. A168482/People v. Rommel Narvaez