P. v. Hardy

Filed 10/4/06 P. v. Hardy CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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Defendant Sean Douglas Hardy entered a negotiated plea of no contest to receiving stolen property (Pen. Code, § 496, subd. (a))^[1] and possessing a short-barreled shotgun (§ 12020, subd. (a)(1)) in exchange for dismissal of the remaining counts, with a Harvey waiver.^[2]

The trial court denied probation and sentenced defendant to three years and eight months in prison, consisting of three years (the upper term) for receiving stolen property, plus a consecutive eight months (one-third the middle term) for possessing a short-barreled shotgun. The court ordered defendant to pay an $800 restitution fine (§ 1202.4, subd. (b)), an $800 parole revocation fine (§ 1202.45), victim restitution in an amount to be determined (§ 1202.4, subd. (f)) and a $40 court security fee (§ 1465.8). The court declined to award defendant any presentence custody credit, finding his custody status was not solely attributable to the instant offenses.^[3]

Defendant appeals. He did not obtain a certificate of probable cause. (§ 1237.5.)

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant.

In reviewing the record, we note that in deciding to impose the upper term, the trial court referenced the following aggravating factors: “Defendant’s priors are numerous. He has served a prior prison term, he was on parole at the time of the crime and his prior performance on probation was unsatisfactory.” Defense counsel objected to imposition of the upper term on the ground that the aggravating factors referenced in the probation report, and later relied on by the court, “were not found true by the jury, [and thus,] violated his rights on the 5th and 6th Amendments as well as due process . . . .” Counsel acknowledged that our Supreme Court has rejected those arguments (People v. Black (2005) 35 Cal.4th 1238, 1244, 1262 (Black)), but argued “it’s possible that the issue may be raised with the United States Supreme Court. Therefore, I’m making that record.”

Black held “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . does not implicate a defendant’s Sixth Amendment right to a jury trial.” (35 Cal.4th at p. 1244, italics omitted.) We are bound by the court’s decision in Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)^[4]

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.

CANTIL-SAKAUYE , J.

We concur:

BLEASE , Acting P.J.

NICHOLSON , J.

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^[1] Hereafter, undesignated statutory references are to the Penal Code.

^[2] People v. Harvey (1979) 25 Cal.3d 754.

^[3] At the time of defendant’s arrest for the instant offenses, he had absconded from parole in another case, and upon his arrest, a parole hold was placed on him.

^[4] A petition for certiorari was filed in Black on September 28, 2005, and is pending and the United Supreme Court has granted certiorari in People v. Cunningham (Apr. 18, 2005, A103501) [nonpub. opn.], cert. granted sub nom. Cunningham v. California, Feb. 21, 2006, No. 05-6551, __ U.S. __, on the issue of whether California’s sentencing scheme, which allows judges to impose enhanced sentences based on their determination of facts not found by the jury, violates the Sixth Amendment.