P. v. Berry
Appellant Paul Berry was charged with one count of second degree burglary, four prison priors, and three prior robbery convictions that qualified as strikes under the Three Strikes law. A jury found him guilty of the burglary charge. At bifurcated proceedings, the prosecutor presented evidence of two prior convictions, which the trial court found to be true. At the sentencing hearing at the Peoples request, the court struck one of the two strikes. Appellant was sentenced to the upper term of three years, doubled to six years under the Three Strikes law.
Appellant filed a notice of appeal. His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. Appellant was notified that he could file his own brief and did so. He contends: (1) He was denied a fair trial because defense counsel was not permitted to refresh a witnesss recollection with the witnesss statement in the police report. (2) The court erred in shackling him during the sentencing hearing. (3) The court erred in ruling that his prior out-of-state convictions qualified as strikes. (4) Imposition of the upper term violated his federal constitutional rights to proof beyond a reasonable doubt and to trial by jury. (5) His Fifth Amendment right to a fair trial was violated when, on the morning of trial, police officers found a saw in the backpack that had been taken from him when he was arrested.
Following review of all the briefing in this case, Court find that no prejudicial error occurred. Court therefore affirm appellants conviction.
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