People v. Wilcox CA3

Filed 12/19/22 P. v. Wilcox CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE, C096143

Plaintiff and Respondent, (Super. Ct. No. 20CF03721)

v.

MICHAEL WILCOX,

Defendant and Appellant.

THE PEOPLE, C096227

Plaintiff and Respondent, (Super. Ct. No. 22CF00312)

v.

MICHAEL WILCOX,

Defendant and Appellant.

Appointed counsel for defendant Michael Wilcox asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).)

1

We requested supplemental briefing as to whether defendant’s upper term sentence was imposed in a manner that complies with Penal Code section 1170, subdivision (b), as amended by Senate Bill No. 567 (2021-2022 Reg. Sess.). Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment. We have, however, found a clerical error in the abstract of judgment which we will direct the trial court to correct. BACKGROUND While on probation defendant pleaded no contest in case No. 20CF03721 (case No. 721) to felony possession of a controlled substance for sale. (Health & Saf. Code, § 11378.)1 The trial court terminated defendant’s prior grant of probation, made an unusual case finding, and issued a new grant of probation. Shortly thereafter defendant reoffended and pleaded no contest in case No. 22CF00312 (case No. 312) to possessing a controlled substance for sale. (Health & Saf. Code, § 11378.) In March 2022, the trial court sentenced defendant to the upper term of three years in prison for case No. 312 and a consecutive one-third middle term of eight months in prison for case No. 721. The probation officer’s report did not set out defendant’s full criminal history but stated defendant “has been consistently committing new crimes since 2004 and was on probation less than five days when he committed the instant offense.” In selecting the upper term sentence, the court noted the following circumstances in aggravation: “The defendant’s prior convictions as an adult or sustained petitions as a juvenile are numerous or of increasing seriousness. Defendant has served prior prison terms; the defendant was on probation for – well, five days at the time of this offense in