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People v. White

California Court of Appeals, Third District, Butte
Mar 28, 2008
No. C056961 (Cal. Ct. App. Mar. 28, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. AL WHITE, Defendant and Appellant. C056961 California Court of Appeal, Third District, Butte March 28, 2008

NOT TO BE PUBLISHED

Sup.Ct. No. CM027290

MORRISON, J.

On August 1, 2007, defendant Al White pleaded no contest to petty theft with a prior (Pen. Code, § 666) committed on or about July 11, 2007, and admitted he had served two prior prison terms. In exchange, three other prior prison term allegations were dismissed.

On September 13, 2007, the trial court sent him to prison for the upper term of three years, plus two years for the admitted prior prison terms (see Pen. Code, § 667.5, subd. (b)). The trial court’s stated reasons for imposing the upper term were “the defendant’s priors are numerous, defendant has served prior prison terms, the defendant was on parole when the offense was committed, and the defendant’s prior performance on both probation and parole was unsatisfactory. The Court found very little, if anything, in mitigation.”

Defendant filed a timely appeal.

Neither in the trial court nor on appeal did defendant dispute the facts underlying the trial court’s reasons, including his criminal record stretching back to 1976 and consisting of nine felonies, twenty-five misdemeanors, and many violations of parole. Although not mentioned by the trial court, we do note that defendant was honorably discharged from the United States Marine Corps.

On appeal, defendant contends the trial court imposed the upper term in violation of his Sixth Amendment rights.

However, on July 19, 2007, before the plea and before the date of sentencing, the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). Defendant concedes that Black and Sandoval control this case as far as we are concerned, but he wishes to preserve the issues for further review.

We agree we are bound to follow Black and Sandoval. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Because the trial court in part relied on defendant’s prior criminal convictions no Sixth Amendment violation took place. (Black, supra, 41 Cal.4th at pp. 813-816, 818-820.)

DISPOSITION

The judgment is affirmed.

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


Summaries of

People v. White

California Court of Appeals, Third District, Butte
Mar 28, 2008
No. C056961 (Cal. Ct. App. Mar. 28, 2008)
Case details for

People v. White

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. AL WHITE, Defendant and Appellant.

Court:California Court of Appeals, Third District, Butte

Date published: Mar 28, 2008

Citations

No. C056961 (Cal. Ct. App. Mar. 28, 2008)