P. v. Bazley
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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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,
Plaintiff and Respondent,
v.
MICHAEL BAZLEY,
Defendant and Appellant.
C072667
(Super. Ct. No. 12F02678)
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
degree burglary ( ADDIN BA xc <@st> xl 16 s
FKLFAW000001 xpl 1 l "Pen. Code, § 459"
Pen. Code, § 459),
financial instrument with intent to utter or pass it fraudulently ( ADDIN BA xc <@osdv> xl 16 s
FKLFAW000015 xpl 1 l "§ 475, subd. (c)"
§ 475, subd. (c)),
and identity theft ( ADDIN BA xc <@osdv> xl 18 s
FKLFAW000016 xpl 1 l "§ 530.5, subd. (a)"
§ 530.5, subd.
(a)) with an allegation that he had a prior conviction for a serious felony
under the "Three Strikes" law -- a 1967 Louisiana conviction for
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 $4,199.73 in victim
restitution, and awarded 402 days’ presentence credit (201 actual and 201
conduct).
Defendant appeals. His request for a
of probable cause was denied.
We appointed counsel to represent
defendant on appeal. Counsel filed an
opening brief that sets forth the facts of the case and requests this court to
review the record and determine whether there are any arguable issues on
appeal. ( ADDIN BA xc <@cs> xl 36 s
FKLFAW000002 xhfl Rep xpl 1 l "
Cal.3d 436" People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right
to file a supplemental brief within 30 days of the date of filing of the
opening brief.
Defendant filed a
brief asserting he should have been sentenced
pursuant to ADDIN BA xc <@osdv> xl 29 s
FKLFAW000017 l "section 1170, subdivision
(h)" section 1170,
subdivision (h), rather than state prison because he was not represented by
counsel in the Louisiana case and there was insufficient evidence to
plead and prove the prior conviction beyond a reasonable doubt.
Defendant’s offense is punishable
under ADDIN BA xc <@$osdv> xl 29 s
FKLFAW000017 section 1170, subdivision (h), unless
defendant has a prior conviction for a serious or violent felony. ( ADDIN BA xc <@osdv> xl 39 s
FKLFAW000018 xpl 1 l "§§ 1170, subd. (h)(3),
530.5, subd. (a)" §§ 1170, subd. (h)(3), 530.5, subd.
(a).) A serious or violent felony
used to disqualify a defendant from ADDIN
BA xc <@$osdv> xl 29 s FKLFAW000017 section 1170, subdivision (h), sentencing
does not have to be pled or proven to a jury.
(
ADDIN BA xc <@cs> xl 49 s FKLFAW000003 xhfl Rep xpl 1 l "People v. Griffis (2013)
evidence showing that the prior conviction was in fact a strike. ( ADDIN BA xc <@$id> xl 5 s ID xpl
1 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
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.]â€
(
ADDIN BA xc <@cs> xl 44 s FKLFAW000004 xhfl Rep xpl 1 l "People v. Shelton (2006)
BA xc <@osdv> xl 8 s FKLFAW000019 xpl 1 l "§ 1237.5" § 1237.5.) Since defendant did not obtain a certificate
of probable cause, his contentions, which challenge a sentence that was part of
the plea agreement, are not cognizable on appeal.
Defendant’s claims also fail on the
merits. The record shows that defendant
has a 1967 Louisiana conviction for armed robbery ( ADDIN BA xc <@st> xl 14 s FKLFAW000005
xpl 1 l "La. R.S. 14:64" La. Rev. Stat. Ann.
§ 14:64). He contends this
conviction is invalid because he was not provided counsel at the time of the
prior conviction. We reject this, as a
defendant cannot attack the constitutional validity of a prior conviction used
in a current prosecution. ( ADDIN BA xc <@cs> xl 51 s
FKLFAW000006 xhfl Rep xpl 1 l "
(1997)
conviction is inadmissible hearsay is also without merit, as the evidence of
his prior is found in a rap sheet and the probation report, which are
admissible at sentencing. ( ADDIN BA xc <@st> xl 18 s
FKLFAW000007 xpl 1 l "Evid. Code, § 1280"
Evid. Code,
§ 1280; ADDIN BA xc <@cs> xl 46 s
FKLFAW000008 xhfl Rep xpl 1 l "
Cal.App.4th 81" People v. Cain (2000) 82 Cal.App.4th 81, 87-88.)
For a conviction in a foreign
jurisdiction to qualify as a strike offense in California, it must have
involved conduct that would constitute a serious felony in California. ( ADDIN BA xc <@cs> xl 40 s
FKLFAW000009 xhfl Rep xpl 1 l "
Cal.4th 49" People v. Avery (2002) 27 Cal.4th 49, 53.) In order to qualify as a strike, if we do not
know the facts of the prior offense, then we “must presume the prior conviction
was for the least offense punishable under the foreign law. [Citations.]â€
(
ADDIN BA xc <@cs> xl 49 s FKLFAW000010 xhfl Rep xpl 1 l "People v. Jenkins (2006)
FKLFAW000020 xpl 1 l "§ 211" § 211), a
serious felony (
ADDIN BA xc <@osdv> xl 23 s FKLFAW000021 xpl 1 l "§ 1192.7, subd. (c)(19)" § 1192.7, subd.
(c)(19)), is defined in California “as the taking of personal property of
some value, however slight, from a person or the person's immediate presence by
means of force or fear, with the intent to permanently deprive the person of
the property. [Citations.]†( ADDIN BA xc <@cs> xl 42 s
FKLFAW000011 xhfl Rep xpl 1 l "
Cal.4th 1" People v. Marshall (1997) 15 Cal.4th 1, 34.)
When defendant was convicted in
Louisiana, armed robbery was “ ‘the theft of anything of value from the
person of another or which is in the immediate control of another, by use of
force or intimidation, while armed with a dangerous weapon.’ †( ADDIN BA xc <@cs> xl 45 s
FKLFAW000012 xhfl Rep xpl 1 l "
719" State v. Welch (1967) 250 La. 719, 721, fn. 2
[198 So.2d 902] [quoting ADDIN
BA xc <@$st> xl 14 s FKLFAW000005 xqt xpl 1 La. Rev. Stat. Ann. § 14:64].) Armed robbery required theft at the time, and
“an essential element of the crime of theft is the specific intent to
permanently deprive the victim of the stolen property. [Citation.]
Since armed robbery is a species of theft, the state must show that the
defendant had the intent necessary for the offense of theft.†( ADDIN BA xc <@cs> xl 45 s
FKLFAW000013 xhfl Rep xpl 1 l "
So.2d 685" State v. Bruins (La. 1981) 407 So.2d 685, 687.) Since armed robbery in Louisiana at that time
was indistinguishable from robbery in California, defendant’s prior conviction
is a serious felony.
Having undertaken an examination of
the entire record, we find no arguable error that would result in a disposition
more favorable to defendant.
DISPOSITION
The judgment is affirmed.
BLEASE , Acting
P. J.
We concur:
NICHOLSON , J.
MAURO , J.
name="_ftn1" title="">[1] Undesignated statutory references are
to the ADDIN BA xc <@ost> xl 10 s
FKLFAW000014 l "Penal
Code" Penal Code.
