P. v. Silva

Filed 2/14/07  P. v. Silva CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION TWO

            This appeal arises from three criminal cases against defendant Thomas Michael Silva, who pleaded guilty to charges of receiving stolen property, attempting to pass a forged check, and failure to appear on a felony charge, and was sentenced to four years, four months in state prison and ordered to pay certain amounts in restitution, including $420 to Woody's Chevron.  Defendant asserts two arguments on appeal: (1) that the imposition of the upper term of three years on the principal term violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely); and (2) that the order that he pay restitution in the amount of $420 to Woody's Chevron was improper since defendant was not charged with passing the forged checks that lead to Woody's loss.  We conclude that neither Blakely nor the recent decision in Cunningham v. California (2007) __  U.S.  __ [127 S.Ct. 856] (Cunningham), supports defendant's first contention.  As to his second contention, we agree, as the People concede, that restitution to Woody's Chevron was improperly ordered.  The abstract of judgment shall be amended to strike the $420 restitution order and affirmed in all other regards.

I.  Factual and Procedural Background[1]

A.  Case No. CR904165-B

On June 7 and 8, 2004, an individual cashed two $200 checks (nos. 1012 and 1015) at Woody's Chevron[2] in Upper Lake.  The checks were drawn on an account purportedly belonging to â€