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People v. Ortiz

California Court of Appeals, Third District, Nevada
Aug 30, 2007
No. C052809 (Cal. Ct. App. Aug. 30, 2007)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JASON SCOTT ORTIZ, Defendant and Appellant. C052809 California Court of Appeal, Third District, Nevada, August 30, 2007

NOT TO BE PUBLISHED

Sup. Ct. No. SF05534

MORRISON, J.

On November 19, 2005, Nevada County Sheriff’s deputies saw defendant Jason Scott Ortiz driving with a cracked windshield and expired registration tags. The deputies pursued defendant, turning on their patrol car’s lights and siren. Defendant initially pulled over, then sped away at a high rate of speed, driving on the wrong side of the road and failing to stop at stop signs. The deputies eventually lost sight of defendant and terminated their pursuit. A few minutes later, Nevada County Police officers saw defendant and gave chase. A California Highway Patrol unit joined the pursuit. Defendant again failed to stop, driving at speeds in excess of 110 miles per hour. He ultimately lost control of his car and spun out. He was arrested and taken to jail, where over eight grams of methamphetamine were found in his pocket. Defendant had been convicted, in December 2000, of vehicle theft (Veh. Code, § 10851) and served a prison term for that offense.

Defendant pled guilty to evading a peace officer with wanton disregard (Veh. Code, § 2800.2, subd. (a)), and possession of methamphetamine (Health & Saf. Code, § 11377) and admitted one prison prior (Pen. Code, § 667.5, subd. (b)); (further undesignated statutory references are to the Penal Code) in exchange for dismissal of the remaining counts and enhancement allegations and a sentencing lid of four years eight months.

The trial court denied defendant’s request for probation, or alternatively, for commitment to the California Rehabilitation Center, and sentenced him to four years eight months in prison, consisting of three years (the upper term) for evading a peace officer and a consecutive eight months (one-third the middle term) for possessing methamphetamine, plus one year for the prison prior. The court awarded defendant 277 days of custody credit (185 actual days and 92 good conduct); imposed a $200 restitution fine (§ 1202.4), a $200 parole revocation fine (§ 1202.45), and various other fines and fees; ordered defendant provide samples (§ 296); and recommended defendant participate in substance abuse counseling while imprisoned (§ 1203.096).

Defendant appeals. He did not obtain a certificate of probable cause. (§ 1237.5.)

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 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. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

On July 24, 2007, we granted defendant’s request for leave to file a supplemental brief addressing the United States Supreme Court’s decision in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856]. On August 2, 2007, we received a letter from defendant’s counsel indicating “that no supplemental brief will be filed in this case” “in part, on the basis of” our Supreme Court’s recent decision in People v. Black (2007) 41 Cal.4th 799 (Black II).) Black II holds that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance . . . is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.) Here, in deciding to impose the upper term, the trial court stated: “Seems clear to me that [] [d]efendant’s prior record and the fact that [] [d]efendant was on parole at the time the offense occurred justified the upper term . . . .” Those circumstances are “based upon [] defendant’s record of prior convictions.” (Ibid.); U.S. v. Corchado (10th Cir. 2005) 427 F.3d 815, 820; U.S. v. Fagans (2d Cir. 2005) 406 F.3d 138, 141-142.) Because either of those circumstances rendered defendant eligible for the upper term sentence, “his Sixth Amendment right to a jury trial was not violated by imposition of the upper term . . . .” (Id. at p. 820; original italics.)

Disposition

The judgment is affirmed.

We concur: BLEASE, Acting P.J., RAYE, J.


Summaries of

People v. Ortiz

California Court of Appeals, Third District, Nevada
Aug 30, 2007
No. C052809 (Cal. Ct. App. Aug. 30, 2007)
Case details for

People v. Ortiz

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JASON SCOTT ORTIZ, Defendant and…

Court:California Court of Appeals, Third District, Nevada

Date published: Aug 30, 2007

Citations

No. C052809 (Cal. Ct. App. Aug. 30, 2007)