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The People v. Joshua Stephen Graf

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)


August 12, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOSHUA STEPHEN GRAF, DEFENDANT AND APPELLANT.

Super. Ct. No. 62-097657B

The opinion of the court was delivered by: Mauro ,j.

P. v. Graf 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appointed counsel for defendant Joshua Stephen Graf asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant filed a supplemental brief arguing that under Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham), the trial court could not sentence him on count one to the upper term of three years because aggravating factors were not found by a jury or admitted by defendant.

Defendant is mistaken. Pursuant to Penal Code section 1170, subdivision (b), trial courts now have discretion in sentencing, and the sentence imposed in this case was pursuant to defendant's plea agreement.

We find no arguable error and no entitlement to additional presentence credit. We will affirm the judgment.

I In March 2010, David Hordyk, a special agent with the California Department of Justice, observed defendant enter the Heritage Inn in Roseville, California. Special Agent Hordyk spoke with the front desk clerk and learned that defendant paid to stay one night in room 248.

Defendant was arrested for a parole violation. Law enforcement then searched room 248. Inside the room, law enforcement found several small baggies containing 6.5 grams of methamphetamine, acetaminophen and OxyContin tablets, bags of marijuana, a digital scale, and a "pay/owe sheet." Law enforcement also found counterfeit $100 bills, a laptop computer, a printer, identification cards belonging to several different people, checks in the name of Dawn West, a digital camera, a "Metro PCS" cell phone box, an "MSR 206 card reader," and ammunition.

Defendant was charged with 19 felonies and a single misdemeanor. It was also alleged that defendant previously served four prison terms within the meaning of Penal Code section 667.5, subdivision (b). After the preliminary hearing, defendant made two Marsden*fn1 motions seeking replacement of his court appointed counsel, but the trial court denied both motions.

Defendant's counsel then filed a motion to suppress all evidence found in defendant's hotel room and a motion to set aside six of the felony charges pursuant to Penal Code section 995. Both motions were to be heard at trial, but the trial court never ruled on them because prior to trial, defendant pleaded no contest to possession of a controlled substance for sale (count one), possession of ammunition (count four), possessing counterfeiting apparatus (count six), forgery (count seven), possession of a forged paper or instrument (count fourteen), receiving stolen property (count fifteen), identity theft (count seventeen), and second degree commercial burglary (count nineteen). Defendant also admitted serving two prior prison terms.

Pursuant to the plea agreement, the trial court dismissed the remaining charges and enhancement allegations and sentenced defendant to eight years eight months in state prison, consisting of three years for count one; four consecutive eight-month terms for counts four, seven, fourteen and fifteen; one year for count six; two concurrent two-year terms for counts seventeen and nineteen; and two years for the prior prison terms. The trial court awarded defendant 580 days of presentence credit (290 actual days and 290 conduct days) and ordered defendant to pay a $400 restitution fine (Pen. Code, § 1202.4). A $400 parole revocation fine was stayed (Pen. Code, § 1204.45), and the trial court reserved jurisdiction regarding direct restitution to the victims.

Defendant obtained a certificate of probable cause.

II Appointed counsel filed an opening brief that sets forth the facts of the case and asked this court to review the record to determine whether there are any arguable issues on appeal. (Wende, supra, 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. Citing Cunningham, supra, 549 U.S. 270 [166 L.Ed.2d 856], he argues that the trial court erred in sentencing him to the upper term of three years on count one, because "the jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant."

Penal Code section 1170, subdivision (b) now provides, however, that when "a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." In this case, the sentence was imposed pursuant to defendant's plea agreement. Under the circumstances, the trial court did not err.

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.

We concur: RAYE , P. J. ROBIE , J.


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