Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF129608, Roger A. Luebs, Judge.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
A jury found defendant and appellant Clement Isadore Leach, Jr., guilty of 15 counts of second degree burglary. (Pen. Code, § 459.) In a bifurcated proceeding, the trial court found true the allegation that defendant had suffered a violent felony and strike based on a Louisiana conviction for armed robbery. The court sentenced him to a total prison term of 22 years 8 months, which included the midterm on count 1, the principal term. Defendant appealed to this court, and in our opinion in People v. Clement Isadore Leach, Jr., case No. E042178, we reversed the true finding on the prior strike allegation and remanded the matter for retrial on that allegation and/or for resentencing. On remand, upon the People’s motion, the court granted a request to dismiss the prior strike. The court then resentenced defendant to an aggregate prison term of 12 years 4 months. The sentence included the upper term on count 1.
All further statutory references will be to the Penal Code unless otherwise noted.
Defendant filed a second appeal after the resentencing hearing. We affirm.
PROCEDURAL BACKGROUND
Defendant was originally sentenced to a term of 22 years 8 months, consisting of the midterm of two years for count 1, doubled because of the prior strike, plus a consecutive term of one year four months for each of counts 2 through 5 and 7 through 16. On appeal, defendant’s convictions were affirmed, but we reversed the true finding on the violent felony and strike conviction since the record of conviction did not reveal conduct amounting to a strike under California law. Thus, on remand, the People moved to dismiss the strike allegation. The court granted the motion and then resentenced defendant. The trial court announced that it intended to sentence defendant to the upper term on count 1, plus eight months on each of the other 14 counts. Defense counsel requested the court to impose the midterm instead of the upper term on count 1. The court stated the reason it would impose the upper term was defendant’s criminal background, which included the Louisiana robbery. It explained that it did not determine defendant was not convicted of the crime of armed robbery, but only that the crime did not qualify as a strike within the meaning of California law. The court asserted: “But now since I’m not sentencing for a strike, I’m just sentencing based on his criminal record, [and] I take that into account and find the upper term is appropriate given his lengthy and fairly recent criminal history including the robbery.” Defense counsel then submitted on the court’s reasoning. The aggregate term imposed at the resentencing hearing was 12 years 4 months.
DISCUSSION
Defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493], setting forth a statement of the case and two potential arguable issues, and requesting this court to undertake a review of the entire record. The potential arguable issues identified by counsel are: 1) whether the court erred in imposing the upper term on count 1, citing the Louisiana robbery conviction; and 2) if the court could revisit whether to impose the mid or upper term on count 1 on remand.
We offered defendant an opportunity to file a personal supplemental brief. He filed a 24-page, handwritten brief, which is difficult to comprehend. Defendant appears to argue that: 1) his sentences on remand were unconstitutional and unauthorized; 2) there “may be some statutory issues based upon the fixing of the degree of burglary by the jury verdicts rendered”; 3) the new sentence on remand may raise double jeopardy issues; 4) the court erroneously imposed the upper term on count 1; 5) the court exceeded its limits by using the prior conviction to impose the upper term after the court dismissed the strike conviction on remand; 5) he should have been convicted for second degree burglary under sections 460, subdivision (b) and 461, subdivision (2), not section 459; 6) he was deprived of his Fifth and Fourteenth Amendment rights to due process and his Sixth Amendment right to a fair trial; and 7) his Miranda rights were violated as to statements he made to the arresting officer and to the investigator during an interview at the police station.
Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].)
We have now concluded our independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
We concur: GAUT, J. KING, J.