P. v. Mahlet
Filed 8/15/07 P. v. Mahlet CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, Plaintiff and Respondent, v. JUSTIN JEREMY MAHLET, Defendant and Appellant. | C053660 (Super. Ct. No. 05F00726) |
Defendant Justin Jeremy Mahlet pleaded guilty to grand theft (Pen. Code, 487, subd. (a))[1]and admitted a prior conviction for assault with a deadly weapon ( 245, subd. (a)(1)). Following a contested hearing, the trial court sustained an allegation that the prior conviction was a serious felony within the meaning of the three strikes law. ( 667, subd. (b)-(i), 1170.12.) Defendant was sentenced to the lower term of 16 months, doubled to 32 months in state prison. The court also imposed a $600 restitution fine, stayed a $600 restitution fine pending successful completion of parole, and awarded 361 days of presentence custody credit (241 actual and 120 conduct days).
Sacramento County sheriffs placed a bait vehicle, a truck equipped with an electronic tracking device, on Sunrise Boulevard. In the bed of the truck was a portable generator worth approximately $1,600. Defendant, who was driving a tow truck, cut the chain holding the generator and placed it in his truck. The tracking device led deputies to defendant, who confessed to stealing the generator.
Defendant filed a timely notice of appeal.
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.
Defendant filed a supplemental brief in which he contends the trial courts decision to sustain the strike allegation is not supported by the record. As part of his plea, defendant admitted to having a prior conviction of assault with a deadly weapon ( 245, subd. (a)(1)). Defendant argues this conviction cannot be considered a strike because the prosecution did not prove that it involved the personal use of a deadly weapon. We disagree.
A prior conviction counts as a strike if it is listed as a serious felony under section 1192.7, subdivision (c). Since the passage of Proposition 21 in 2000, assault with a deadly weapon . . . in violation of Section 245 has counted as a serious felony for this purpose, without regard to whether the defendant personally used the deadly weapon. ( 1192.7, subd. (c)(31); People v. Myers (2007) 148 Cal.App.4th 546, 554; People v. Luna (2003) 113 Cal.App.4th 395, 398.) Accordingly, we reject defendants contention.
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.
BUTZ , J.
We concur:
DAVIS , Acting P. J.
ROBIE , J.
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[1] Undesignated statutory references are to the Penal Code.
