P. v. Ortiz
Filed 8/30/07 P. v. Ortiz 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Nevada)
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THE PEOPLE, Plaintiff and Respondent, v. JASON SCOTT ORTIZ, Defendant and Appellant. | C052809 (Sup. Ct. No. SF05534) |
On November 19, 2005, Nevada County Sheriffs deputies saw defendant Jason Scott Ortiz driving with a cracked windshield and expired registration tags. The deputies pursued defendant, turning on their patrol cars lights and siren. Defendant initially pulled over, then sped away at a high rate of speed, driving on the wrong side of the road and failing to stop at stop signs. The deputies eventually lost sight of defendant and terminated their pursuit. A few minutes later, Nevada County Police officers saw defendant and gave chase. A California Highway Patrol unit joined the pursuit. Defendant again failed to stop, driving at speeds in excess of 110 miles per hour. He ultimately lost control of his car and spun out. He was arrested and taken to jail, where over eight grams of methamphetamine were found in his pocket. Defendant had been convicted, in December 2000, of vehicle theft (Veh. Code, 10851) and served a prison term for that offense.
Defendant pled guilty to evading a peace officer with wanton disregard (Veh. Code, 2800.2, subd. (a)), and possession of methamphetamine (Health & Saf. Code, 11377) and admitted one prison prior (Pen. Code, 667.5, subd. (b)); (further undesignated statutory references are to the Penal Code) in exchange for dismissal of the remaining counts and enhancement allegations and a sentencing lid of four years eight months.
The trial court denied defendants request for probation, or alternatively, for commitment to the California Rehabilitation Center, and sentenced him to four years eight months in prison, consisting of three years (the upper term) for evading a peace officer and a consecutive eight months (one-third the middle term) for possessing methamphetamine, plus one year for the prison prior. The court awarded defendant 277 days of custody credit (185 actual days and 92 good conduct); imposed a $200 restitution fine ( 1202.4), a $200 parole revocation fine ( 1202.45), and various other fines and fees; ordered defendant provide samples ( 296); and recommended defendant participate in substance abuse counseling while imprisoned ( 1203.096).
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. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.[1]
Disposition
The judgment is affirmed.
MORRISON , J.
We concur:
BLEASE , Acting P.J.
RAYE , J.
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[1] On July 24, 2007, we granted defendants request for leave to file a supplemental brief addressing the United States Supreme Courts decision in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856]. On August 2, 2007, we received a letter from defendants counsel indicating that no supplemental brief will be filed in this case in part, on the basis of our Supreme Courts recent decision in People v. Black (2007) 41 Cal.4th 799 (Black II).) Black II holds that imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance . . . is justified based upon the defendants record of prior convictions. (Id. at p. 816.) Here, in deciding to impose the upper term, the trial court stated: Seems clear to me that [] [d]efendants prior record and the fact that [] [d]efendant was on parole at the time the offense occurred justified the upper term . . . . Those circumstances are based upon [] defendants record of prior convictions. (Ibid.); U.S. v. Corchado (10th Cir. 2005) 427 F.3d 815, 820; U.S. v. Fagans (2d Cir. 2005) 406 F.3d 138, 141-142.) Because either of those circumstances rendered defendant eligible for the upper term sentence, his Sixth Amendment right to a jury trial was not violated by imposition of the upper term . . . . (Id. at p. 820; original italics.)
