Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 07CM1038, Louis F. Bissig, Judge.
William Davies, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Before Wiseman, Acting P.J., Levy, J., and Dawson, J.
OPINION
It was alleged in an information filed April 20, 2007, as follows: appellant, Fidel Robert Gomez, committed violations of Health and Safety Code section 11379, subdivision (a) (transportation of methamphetamine; count 1), section 11378 (possession of methamphetamine for purposes of sale; count 2), Penal Code section 12316, subdivision (b)(1) (possession of ammunition by a person prohibited from owning or possessing a firearm; count 3), and section 11364 (possession of controlled substance paraphernalia; count 4); he had suffered a prior conviction of violating section 11378 (§ 11370.2, subd. (c)); and he had served a prison term for a prior felony conviction (Pen. Code, § 667.5, subd. (b)).
Except as otherwise indicated, all statutory references are to the Health and Safety Code.
Pursuant to a plea agreement, on May 7, 2007, appellant pled guilty to the count 2 offense and admitted the prior prison term enhancement. Also pursuant to the plea agreement, the court dismissed the remaining counts and the prior drug offense enhancement.
On June 5, 2007, the court imposed a prison term of four years, consisting of the three-year upper term on the substantive offense and one year on the prior prison term enhancement. The court also ordered that appellant pay various fines and fees, including a restitution fine of $800 (Pen. Code, § 1202.4, subd. (b)).
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d. 436.) Appellant himself submitted a brief to this court in which he argues, as best we can determine, that (1) he was denied his right to trial by jury under the Sixth Amendment to the United States Constitution because the court imposed the upper term based on facts that were not by a jury beyond a reasonable doubt, and (2) he has not been properly credited for payments made on the fines and fees ordered by the court. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Our factual statement is taken from the report of the probation officer.
At approximately 9:45 p.m. on March 23, 2007, Kings County Deputy Sheriff Johnson effected a stop of a car because he noticed it had an “inoperable license plate lamp” and was therefore in violation of Vehicle Code section 24601. Appellant was the driver. He told the deputy he was on parole for possession of methamphetamine for purposes of sale.
At Deputy Johnson’s direction, appellant got out of the car. As he did so he “began to hit the side of the door,” in an apparent effort to “knock something off the door panel onto the ground.” At that point, the deputy “saw a small white substance” fall to the ground.
Deputy Johnson then conducted a pat-down search of appellant, during which he felt an object in one of appellant’s pockets which, appellant informed the deputy, was a digital scale. Appellant also “acknowledged that he had thrown methamphetamine [to] the ground.” Deputy Johnson “then walked over to [appellant’s] vehicle and located a small chunk of what appeared to be methamphetamine.” In a subsequent search of the car, the deputy “found more small chunks of what appeared to be methamphetamine….” Deputy Johnson also found $410 in his search of appellant’s person.
Appellant’s Criminal History
As a juvenile, in 1995 appellant was adjudged a ward of the court based on an adjudication of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)).
As an adult, between October 2001 and May 2004, appellant suffered four misdemeanor convictions—of battery (Pen. Code, § 242), obstructing, delaying or resisting a peace officer (Pen. Code, § 148, subd. (a)), driving under the influence of drugs and/or alcohol (Veh. Code, § 23152, subd. (a)) and driving at a time he had a blood-alcohol content of .08 percent or more—and two felony convictions, of possession of methamphetamine (§ 11377, subd. (a)) and possession of methamphetamine for purposes of sale (§ 11378). Prior to commission of the instant offense, he served two prison terms, violated probation on five occasions and violated parole on two occasions. He was on parole at the time of the instant offense.
Sentencing
The trial court imposed the upper term based on its findings of the following circumstances in aggravation: appellant “has an extensive criminal record”; he was on parole at the time of the instant offense; and he “has a history of violation of probation [and] parole in the past.”
Defense counsel asked “that the $410 held in evidence be restored to [appellant],” and stated, “I understand that those [sic] are liable for fines and fees [ordered by the court].” Thereafter, the court ordered that “the $410 being held in evidence be released to be applied toward fines and other court related expenses.”
DISCUSSION
“Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 868].) As indicated above, it appears that appellant contends the imposition of the upper term in the instant case ran afoul of this principle. There is no merit to this claim.
The court’s reference to appellant’s “extensive criminal record” indicates that the court based its imposition of the upper term, at least in part, on appellant’s prior convictions. Therefore, the imposition of the upper term did not violate appellant’s right to trial by jury, regardless of the other aggravating factors found by the court. (People v. Black (2007) 41 Cal.4th 799, 813 & 816.)
We offer no opinion as to whether either of the other two circumstances in aggravation found by the court fell outside the prior conviction exception to the general rule requiring jury determination of aggravating sentencing factors.
Appellant also suggests that the money seized from him at the time of his arrest and ordered applied toward the fines and fees has not been properly credited toward those fines and fees. The record contains no support for this claim. Therefore, we need not address it. (People v. Barnett (1998) 17 Cal.4th 1044, 1183 [review on appeal limited to appellate record].)
Following independent review of the record, we have concluded that no reasonably arguable legal or factual issues exist.
DISPOSITION
The judgment is affirmed.