P. v. Bazley CA3

Filed 5/21/13 P. v. Bazley CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento)

THE PEOPLE, C072667

Plaintiff and Respondent, (Super. Ct. No. 12F02678)

v.

MICHAEL BAZLEY,

Defendant and Appellant.

Between February 13, 2012, and February 22, 2012, defendant Michael Bazley stole checks belonging to Kathleen Rosing and deposited them in his bank account. As a result, SAFE Credit Union suffered a $400 loss and Golden 1 Credit Union incurred a loss of $3,799.73. Defendant was charged with second degree burglary (Pen. Code, § 459),1 possession of a completed check or other financial instrument with intent to utter or pass it fraudulently (§ 475, subd. (c)), and identity theft (§ 530.5, subd. (a)) with an allegation that he had a prior conviction for a serious felony under the "Three Strikes" law -- a 1967

1 Undesignated statutory references are to the Penal Code.

1

Louisiana conviction for armed robbery. Pursuant to a negotiated plea, defendant pled no contest to identity theft with a stipulated sentence of three years in state prison in exchange for dismissal of the remaining charges and the strike allegation. The trial court sentenced defendant to the stipulated three-year state prison term, imposed various fines and fees, ordered defendant to pay $4,199.73 in victim restitution, and awarded 402 days‟ presentence credit (201 actual and 201 conduct). Defendant appeals. His request for a certificate of probable cause was denied. 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. Defendant filed a supplemental brief asserting he should have been sentenced pursuant to section 1170, subdivision (h), rather than state prison because he was not represented by counsel in the Louisiana case and there was insufficient evidence to plead and prove the prior conviction beyond a reasonable doubt. Defendant‟s offense is punishable under section 1170, subdivision (h), unless defendant has a prior conviction for a serious or violent felony. (§§ 1170, subd. (h)(3), 530.5, subd. (a).) A serious or violent felony used to disqualify a defendant from section 1170, subdivision (h), sentencing does not have to be pled or proven to a jury. (People v. Griffis (2013) 212 Cal.App.4th 956, 959.) However, there must still be substantial evidence showing that the prior conviction was in fact a strike. (Ibid.) Defendant‟s plea agreement included a three-year state prison term as a stipulated sentence, and the People would not use the strike allegation other than to render defendant eligible for state prison. “ „[A] challenge to a negotiated sentence imposed as part of a plea bargain is properly viewed as a challenge to the validity of the plea itself‟ and thus requires a certificate of probable cause. [Citation.]” (People v. Shelton (2006)