P. .v Berry
Appellant contends the trial court unconstitutionally imposed the upper term after he pled guilty to grand theft (Pen. Code, 487, subd. (a)), and unlawful possession of methamphetamine (Health & Saf. Code, 11377, subd. (a)), and admitted two prior strike convictions. Allegations that Berry operated a motor vehicle without adequate illumination of the rear license plate (Veh. Code, 24601) and without two mirrors (Veh. Code, 26709, subd. (a)) were dismissed, and the court granted the prosecutions motion to strike three prior prison term allegations. Before entering his plea, Berry acknowledged his understanding he could be sentenced to up to 25 years to life on each count, to be served consecutively, but pursuant to the plea agreement, the court would entertain a motion to strike the priors.
Berry filed a motion requesting the court exercise its discretion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and Penal Code section 1385, subdivision (a), to strike one of the strike priors. At the August 1, 2006, sentencing hearing, the court granted the motion and struck one of the strike priors. The court imposed an aggregate sentence of seven years, four months, comprised of the six year upper term for grand theft and a consecutive 16 months, or one-third the mid-term, for possession of methamphetamine. In imposing the upper term, the court found there were no mitigating factors, but found the following aggravating factors: (1) Berry had been convicted of other crimes for which consecutive sentences would have been imposed; (2) Berry had engaged in violent conduct; (3) Berrys prior convictions as an adult were numerous; (4) Berry served two prior prison terms; (5) Berrys performance on misdemeanor probation, felony probation, and parole had been unsatisfactory in that he violated the terms and committed new law violations; and (6) the way the crime was carried out indicated some degree of sophistication. The court concluded the aggravating circumstances warranted the upper term of six years.
A timely notice of appeal was filed on September 18, 2006. A request for a certificate of probable cause on the stated ground that Berry was claiming bad guidance from my paid attorney was granted on September 20, 2006.
Berry initially filed an appellate brief pursuant to People v. Wende (1979) 25 Cal.3d 436, but subsequently effectively withdrew that brief by filing a brief challenging his upper term sentence in light of Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham). Court affirm.
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