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People v. Smith

Court of Appeal of California
Sep 4, 2008
No. A120105 (Cal. Ct. App. Sep. 4, 2008)

Opinion

A120105

9-4-2008

THE PEOPLE, Plaintiff and Respondent, v. FLEMING SMITH III, Defendant and Appellant.

Not to be Published


Defendant appeals from a judgment entered on his plea. His counsel has asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.)

Defendant entered a plea of no contest to charges of violation of Penal Code sections 484, 666 (petty theft with four prior convictions of petty theft), and admitted two prison priors (§ 667.5, subd. (b)). He was sentenced to five years in state prison. The plea was made pursuant to a negotiated disposition entered into with the prosecution; an additional charge of burglary was dismissed. The execution of this sentence was suspended and defendant was placed on probation and ordered to serve seven months in county jail and to successfully complete residential drug treatment (among other terms and conditions). His probation was subsequently revoked on two occasions; on the first his probation was reinstated and he was permitted to complete a new residential treatment program and on the second his probation was terminated unsuccessfully. This timely appeal followed.

The charges arose from an April, 2006 incident where defendant took $380.87 worth of clothing from a Mervyns store without paying for it.

The sentence consisted of the aggravated term of three years, plus two years for the prison priors. Although defendants agreed-upon disposition originally indicated his agreement to a state prison suspended sentence with no immediate prison time and indicated that the trial court would select the appropriate term upon receipt of the probation report, at the time of sentencing defendant stipulated to the imposition of the aggravated term. Defendant thereby waived his right to a jury trial on the sentencing factors and no Cunningham v. California (2007) 549 U.S. 270 error appears. (See People v. French (2008) 43 Cal.4th 36, 49-50; People v. Hester (2000) 22 Cal.4th 290, 295.)

Defendant was advised of his constitutional rights prior to the entry of his plea, as well as the consequences of his plea. The court found the plea was free and voluntary, and that there was a factual basis for it. No error appears in the entry of his plea, in the initial sentencing, nor in his subsequent probation violation hearings. Defendant was represented by counsel at all times. There are no meritorious issues to be argued on appeal.

The written waiver of rights form was inadvertently omitted from the augmented clerks transcript filed with this court. On our own motion, we ordered the record augmented with the waiver form, which was transmitted to this court by the trial court.

The judgment is affirmed.

We concur:

Reardon, Acting P.J.

Rivera, J.


Summaries of

People v. Smith

Court of Appeal of California
Sep 4, 2008
No. A120105 (Cal. Ct. App. Sep. 4, 2008)
Case details for

People v. Smith

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. FLEMING SMITH III, Defendant and…

Court:Court of Appeal of California

Date published: Sep 4, 2008

Citations

No. A120105 (Cal. Ct. App. Sep. 4, 2008)