P. v. Ynclan
Filed 7/10/08 P. v. Ynclan CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. GINO ROBERT YNCLAN, Defendant and Appellant. | F054049 (Super. Ct. No. 03CM9114) OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Peter M. Schultz, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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PROCEEDINGS
On December 4, 2003, the Kings County DistrictAttorney filed an information in superior court charging appellant, Gino Ynclan, with two counts of attempted manufacture of a sharp instrument while in prison (Pen. Code,[1] 4502, subd. (b)). The information alleged one prior felony strike ( 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and four prior prison term enhancements ( 667.5, subd. (b)).
On February 17, 2004, jury trial commenced. At the conclusion of the prosecution case-in-chief that same day, the court granted appellants motion to acquit on count II, finding only a single act ( 1118.1). On February 18, 2004, the jury found appellant guilty of count I. On the same date, the court conducted a bifurcated proceeding as to the special allegations and appellant admitted one prior prison term and one prior serious felony conviction. ( 667.5, subd. (b), 667, subds. (b)-(i), 1170.12, subd. (a).)
On April 19, 2004, the trial court sentenced appellant to the upper term of three years on count one, which was doubled pursuant to the three strikes law. The court imposed a consecutive term of one year for the prior prison term enhancement. The court made appellants sentence consecutive to the term he was serving in prison when he reoffended. The court imposed a restitution fine of $600.
We issued our first opinion affirming the judgment on December 14, 2005. On March 1, 2006, the California Supreme Court denied appellants petition for review without prejudice to any relief appellant might be entitled after determination of Cunningham v. California (2007) 549 U.S. 270 (Cunningham), which was pending before the United States Supreme Court until it was decided on January 22, 2007.[2] On March 1, 2007, this court ordered the remittitur to be recalled and the trial courts judgment vacated. We issued a second opinion on July 12, 2007, remanding the case for resentencing pursuant to Cunningham and for the trial court to either impose or to strike upon a statement of reasons two prior prison term enhancements. The rest of the judgment was otherwise affirmed.
On October 5, 2007, the trial court sentenced appellant to the upper term of three years on count one. The court found the aggravating circumstance of appellants extensive record of prior convictions.[3] The court doubled appellants sentence to six years pursuant to the three strikes law and imposed one prior prison term enhancement for a total sentence of seven years, consecutive to the term he was serving in prison.[4] !(CT 31)! The court imposed a $600 restitution fine.
Appellants appointed appellate counsel has filed an opening brief, which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record.[5] (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court. By letter on March 11, 2008, we invited appellant to submit additional briefing. To date, he has not done so.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.
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*Before Cornell, Acting P.J., Gomes, J., and Kane, J.
[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] We initially remanded the case for the court to impose, or to strike upon a statement of reasons, two prior prison term enhancements.
[3] Appellants upper term sentence was justified by his criminal history, a sentencing factor for which a jury finding is not required. (People v. Black (2007) 41 Cal.4th 799, 818-820.) Furthermore, appellant was resentenced long after the Legislature revised section 1170. The trial courts utilization of the new statute is neither a violation of the ex post facto clause nor due process clauses of the United States Constitutions. (People v. Sandoval (2007) 825, 845-857.)
[4] The court struck the two remaining prior prison terms upon a statement of reasons.
[5] On February 1, 2008, we denied appellants motion to augment the record with transcripts of the original sentencing hearing and the probation officers report. Alternatively, we ordered the Clerk/Administrator of our court to prepare copies of these documents and to forward them to appellants counsel.
