Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. Nos. CR904614, CR908662
Pollak, J.
Defendant Joseph Anthony Trongo, Jr. appeals from a judgment imposing a three-year eight-month sentence upon a plea of no contest to one count of assault, one count of misdemeanor vehicle theft, one count of misdemeanor hit and run, and guilty to one count of driving without a valid license. Defendant’s attorney has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting our independent review of the record. Defendant has been advised of his right to file a supplemental brief and has failed to do so. We find no arguable issue and shall affirm.
BACKGROUND
On September 6, 2005, defendant pled no contest to one count of forging an official seal (Pen. Code, § 472.) in case No. CR 904614. Imposition of sentence was suspended and defendant was placed on probation for three years. On April 13, 2006, an information was filed charging defendant with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), vehicle theft (Veh. Code, § 10851, subd. (a)), possession of a stolen vehicle (Pen. Code, § 496d, subd. (a)), misdemeanor hit and run (Veh. Code, § 20002, subd. (a)), and driving without a valid license (Veh. Code, § 12500, subd. (a)).
In a probation report filed on June 2, 2006, it was reported that defendant had violated his probation in the original case, No. CR904614, by committing the acts leading to the charges in the present case. The report stated that on October 20, 2005, defendant was stopped in a “routine traffic stop” during which he admitted to “taking Vicodin and smoking marijuana and methamphetamine the previous day.” The report also stated that on March 7, 2006, Agustin Ochoa reported that he had seen his car, which was stolen on February 24, 2006, parked in front of a market. Ochoa confronted defendant, who was in the driver’s seat of the car. Defendant drove away, and Ochoa followed in another car. Defendant “pushed Mr. Ochoa off of the road with the stolen vehicle. This caused the defendant to hit a telephone pole and he subsequently left the scene.”
The court summarily revoked probation in the first case. Defendant pled no contest to assault by means of force likely to produce great bodily injury, misdemeanor vehicle theft, misdemeanor hit and run, and guilty to driving without a valid license. The charge of possession of a stolen vehicle was dismissed.
Defendant was sentenced to the middle term of three years for the assault with a deadly weapon and three concurrent terms of 180 days each for the misdemeanor counts. The court also revoked probation in case No. CR904614 and sentenced defendant to serve consecutively eight months, or one-third the midterm, for forging an official seal. In finding that the terms should be consecutive, the court relied on the fact that the offenses “were at different times, different places, and not part of one period of aberrant behavior.” (Cal. Rules of Court, rule 4.425.) Defendant was ordered to pay a restitution fine of $700, with a second fine suspended unless parole is revoked, and was given custody credits for 278 days.
Defendant timely filed a notice of appeal.
DISCUSSION
Defendant’s notice of appeal challenges only his sentence. At sentencing, defendant argued that the court could not consider the aggravating factors listed in the probation report, that defendant engaged in violent conduct and was on probation at the time of the second offense, citing Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]. That case and the California Supreme Court cases applying it, People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825, prohibit consideration of certain aggravating factors without an admission or jury finding only where the court imposes an aggravated term. These cases do not require admissions or jury findings to support factors on which the court relies in imposing sentences consecutively rather than concurrently. (People v. Black, supra, at p. 821.) Here, the court imposed midterm sentences, so that the rights discussed in these cases are not implicated. Nor in viewing the record independently does there appear to be any impropriety in the trial court’s calculation of the sentence. Defendant was represented by competent counsel throughout.
There are no issues that require further briefing.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P. J., Siggins, J.