Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. Nos. CR904040, CR907399
Pollak, J.
Defendant Carl Ernest Duval appeals from a judgment entered after he pled guilty to one count of forgery in case No. CR904040 and one count of possession of marijuana for sale in case No. CR907399. His counsel raises no issues and asks this court for an independent review of the record. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was apprised of his right to file a supplemental brief but did not do so.
On May 25, 2006, defendant was charged by information in case No. CR907399 with one count of possession of marijuana for sale (Health & Saf. Code, § 11359), one count of transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)), one count of possession of marijuana (Health & Saf. Code, § 11377, subd. (a)), one count of escaping from custody (Pen. Code, § 4532, subd. (b)(1)), one count of willful failure to appear for a felony charge (§ 1320.5), a misdemeanor count of possession of marijuana (Health & Saf. Code, § 11357, subd. (c)), and a misdemeanor count of driving with a suspended license (Veh. Code, § 14601.2, subd. (a)). The information also alleged an enhancement for committing a felony while on probation (§ 12022.1), a prior strike (§§ 667, subds. (b-i), 1170.12, subds. (a)-(d)), and two prior prison term enhancements (§ 667.5).
All statutory references are to the Penal Code unless otherwise noted.
On the same day, defendant was charged by information in case No. CR904040 with two counts of first degree burglary (§ 459), one count of receiving stolen property (§ 496, subd. (a)), four counts of forgery (§ 470, subd. (d)), two counts of possessing a counterfeit check (§ 475, subd. (a)), and two counts of possessing a counterfeit check with the intent to utter (§ 475, subd. (c)). The information also alleged a prior strike (§§ 667, subd. (b-i), 1170.12, subds. (a)-(d), and two prior prison term enhancements (§ 667.5).
On April 9, 2007, pursuant to a negotiated disposition, defendant admitted to one count of forgery in case No. CR904040 and one count of possession of marijuana for sale in case No. CR907399 in exchange for the dismissal of the remaining charges. Defendant also admitted the prior strike conviction and signed waivers pursuant to People v. Harvey (1979) 25 Cal.3d 754 and Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856]. Defendant was advised that his maximum prison exposure based on his pleas in the two cases was seven years four months. The trial court properly advised defendant of his constitutional rights before taking defendant’s plea and established a factual basis for the plea based on the stipulations of counsel. The court subsequently imposed a prison sentence of seven years four months, computed as follows: in case No. CR904040 (the forgery case), the court imposed the upper term of three years, doubled for the strike. In case No. CR907399 (the marijuana case), the court imposed a consecutive sentence of one-third of the midterm of two years (eight months), doubled for the strike.
Prior to sentencing, defendant filed a motion to strike his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. In light of defendant’s substantial record of prior convictions for, among other things, robbery, burglary and other theft-related offenses, the trial court did not abuse its discretion in denying defendant’s motion. (People v. Williams (1998) 17 Cal.4th 148, 158.)
Defendant also filed a statement in mitigation and argued at the sentencing hearing that he should be granted the midterm sentence in the marijuana case because he accepted responsibility early in the proceedings. While the trial court indicated that it considered the upper term to be appropriate, the court in fact imposed only one-third the midterm for that offense, pursuant to section 1170.1.
In his memorandum and at the hearing, defendant also argued that any sentence imposed in the forgery case should run concurrently with the sentence imposed in the marijuana case. Relying on People v. Martinez (1995) 37 Cal.App.4th 1589, disapproved of in part in People v. Lowe (2007) 40 Cal.4th 937, 946, footnote 3, defendant argued that he was denied due process because the prosecution unreasonably delayed in filing the charges in the forgery case until after he had completed serving time in the county jail on a separate, unrelated parole violation for reckless driving/driving on a suspended license. He argued that, although the forgery took place in February and March of 2004 and the investigation was completed sometime later that year, the complaint in the forgery case was not filed until he was released from jail in March 2005. Defendant did not, however, file a separate motion challenging the assertedly improper delay in filing the forgery charges. Instead at his sentencing he requested that he be given credit for the time he served on the parole violation or, in the alternative, that his sentence in the forgery case run concurrent with his sentence in the marijuana case to “address this inequity.” The court properly denied his request and certainly did not abuse its discretion by imposing consecutive sentences on the grounds that the crimes and their objectives were predominately independent and were committed at different times and places. Accordingly, we find no error with regard to defendant’s sentence or the calculation of credits.
Defendant was adequately represented by counsel at all stages of the proceedings.
Disposition
The judgment is affirmed.
We concur: McGuiness, P. J. Siggins, J.