People v. Canty CA3

Filed 9/12/23 P. v. Canty CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Tehama) ----

THE PEOPLE, C097704

Plaintiff and Respondent, (Super. Ct. Nos. 22CR000762, 22CR001524) v.

AARON BRUCE CANTY, JR.,

Defendant and Appellant.

Defendant Aaron Bruce Canty, Jr., pleaded guilty to passing a false license plate and admitted a prior strike allegation in Tehama County Superior Court case No. 22CR000762 (case No. 762). In Tehama County Superior Court case No. 22CR001524 (case No. 524), he pleaded guilty to grand theft. At sentencing on November 29, 2022, the trial court imposed the upper term in case No. 762, doubled for the prior strike offense, and one-third the middle term in case No. 524, to be served consecutively.

1

On appeal, defendant contends the trial court imposed the upper term in violation of Penal Code section 1170,1 which at the time of sentencing had been amended by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1) (Senate Bill 567). Defendant contends he received ineffective assistance of counsel if we find this issue forfeited. We find defendant did forfeit this issue and conclude he did not establish his claim for ineffective assistance of counsel. FACTUAL AND PROCEDURAL BACKGROUND2 In July 2022, defendant pleaded guilty to passing a false license plate and grand theft. He also admitted to being previously convicted of a strike offense. At the November 29, 2022, sentencing hearing, defendant invited the court to strike his prior conviction and place him on probation. He argued that his prior strike conviction was remote in time, the current offense was minor, and his “prospects for success” on probation were high. Defendant also argued the current offense was “connected to mental illness” and “prior victimization or childhood trauma.” The court considered a “certified RAP sheet” as well as the probation report and expressed its concern for public safety based on defendant’s criminal history. Accordingly, the court refused to strike the prior strike or place defendant on probation. The trial court then sentenced defendant to an aggregate term of six years eight months in state prison, comprised of the upper term of three years, doubled for the prior strike, plus a consecutive eight-month term. The court explained its sentence: “. . . pursuant to imposing the aggravated term as the aggravating factors of a prior criminal history can be determined or considered when deciding whether or not to impose the upper term.