People v. Smith CA3

Filed 10/14/20 P. v. Smith CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yuba) ----

THE PEOPLE, C090676

Plaintiff and Respondent, (Super. Ct. No. CRF191178)

v.

TORIANO GERMAINE SMITH,

Defendant and Appellant.

Appointed counsel for defendant Toriano Germaine Smith filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) After examining the record, we find no arguable error that would result in a disposition more favorable to defendant and affirm.

1

FACTUAL AND PROCEDURAL BACKGROUND In June 2019 the victim stored his checks at his business in a desk located in a public lobby. He noticed a pending check for $1,400 that he did not recognize on his checking account; he stopped payment on the check and contacted law enforcement. The pending check number was missing from his checkbook. Surveillance video from the previous day showed defendant entering the lobby and removing a check from the checkbook. At the time, defendant was on parole with GPS monitoring, and his GPS data showed that he had been at the bank where the missing check was cashed. In July 2019 defendant was charged with forgery relating to a check exceeding $950 in value (Pen. Code, §§ 476, 473, subd. (a)).1 It was further alleged that he had a prior strike conviction (§§ 667, subds. (b)-(j), 1170.12). On July 17, 2019, defendant pleaded no contest to the forgery offense and admitted the strike prior in exchange for no more than the low term (doubled) of 32 months in prison and the ability to file a Romero2 motion before sentencing; under the terms of the agreement, an unusual case finding was necessary before probation could be granted. He also agreed to a Cruz waiver; if he violated the Cruz waiver, defendant stipulated to the maximum term of six years.3 The parties stipulated that the police report could serve as the factual basis for the plea. Prior to sentencing defendant filed a Romero motion, requesting that the trial court strike his strike prior. The People opposed the motion. The court denied the motion, finding defendant fell within the spirit of the three strikes law given his lengthy criminal record.