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People v. McNear

California Court of Appeals, First District, First Division
Mar 28, 2008
No. A119413 (Cal. Ct. App. Mar. 28, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. TWINETTE McNEAR, Defendant and Appellant. A119413 California Court of Appeal, First District, First Division March 28, 2008

NOT TO BE PUBLISHED

Solano County Super. Ct. No. FCR245978

Margulies, J.

Twinette McNear appeals from a judgment following a plea of no contest and imposition of sentence. Her counsel has raised no issues and asks this court for an independent review of the record to determine whether there are any issues that would, if resolved favorably to defendant, result in reversal or modification of the judgment. (People v. Kelly (2006) 40 Cal.4th 106; People v. Wende (1979) 25 Cal.3d 436; see Smith v. Robbins (2000) 528 U.S. 259.) Counsel has notified defendant that she could file a supplemental brief raising any issues she wishes to call to this court’s attention. We have not received any supplemental brief. We have independently reviewed the record and conclude that no arguable issues are presented for review and affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The Solano County District Attorney filed a complaint on August 8, 2007, charging defendant with a violation of Penal Code section 666, petty theft with prior theft convictions. The complaint also alleged that defendant had committed acts which aggravated the crime pursuant to rules 4.408 and 4.421 of the California Rules of Court. Defendant subsequently waived her right to a preliminary hearing and entered a plea of no contest to petty theft with priors. This was an open plea, with sentencing left to the trial court’s discretion.

All statutory references are to the Penal Code.

According to the probation report, defendant stole clothing valued at approximately $350 from Macy’s. The probation officer indicated that defendant was presumptively ineligible for probation because she had suffered two or more prior felony convictions. Nonetheless, it appeared to the probation officer that an unusual circumstance existed due to defendant’s substance abuse problem, and recommended defendant’s placement on probation in conjunction with completing a category I residential program.

During the subsequent sentencing hearing, the court found that drug abuse was not an unusual circumstance and denied probation. The court imposed the aggravated term of three years indicating that defedant had a “horrendous criminal record spanning many, many years and many times in jails and prison.” Defendant was awarded 66 days of custody credit. The court imposed a $600 restitution fine (§ 1202.4, subd. (b)), and a corresponding suspended parole revocation restitution fine (§ 1202.45).

Defendant has filed a timely notice of appeal challenging the sentence imposed and other matters occurring after the plea.

DISCUSSION

Defendant was represented by counsel throughout the proceedings.

We find no meritorious sentencing issues that would require reversal of the judgment. Defendant entered into an open plea in which she was informed that she could receive the maximum punishment of three years. The trial court’s decision to impose the upper term sentence of three years in light of the defendant’s extensive criminal history, including 14 felonies, spanning many years is neither irrational nor arbitrary, and therefore must be affirmed on appeal. Additionally, the imposition of the upper term sentence raises no issues under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 860] because the trial court based its imposition of the upper term on recidivist factors. (See People v. Black (2007) 41 Cal.4th 799, 812 [stating that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [v. New Jersey (2000) 530 U.S. 466] and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial”].)

In sum, our independent review of the record reveals no error.

The judgment is affirmed.

We concur: Marchiano, P.J. Stein, J.


Summaries of

People v. McNear

California Court of Appeals, First District, First Division
Mar 28, 2008
No. A119413 (Cal. Ct. App. Mar. 28, 2008)
Case details for

People v. McNear

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. TWINETTE McNEAR, Defendant and…

Court:California Court of Appeals, First District, First Division

Date published: Mar 28, 2008

Citations

No. A119413 (Cal. Ct. App. Mar. 28, 2008)