People v. Rood CA3 ( 2021 )

Filed 9/15/21 P. v. Rood 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Shasta)
----
THE PEOPLE, C093435
Plaintiff and Respondent, (Super. Ct. No. 19F7188)
v.
COLTON JAMES ROOD,
Defendant and Appellant.
On October 11, 2019, while in jail, defendant assaulted a custodial deputy as he
tried to escort defendant to the visiting room, causing various injuries. Defendant was
charged with assault with force likely to produce great bodily injury, assault upon a
custodial officer and obstructing/resisting an executive officer. The complaint also
alleged a strike for a prior serious/violent felony.
Defendant pled no contest to assault with force likely to produce great bodily
injury and admitted the prior strike. In exchange, the remaining counts were dismissed,
and defendant agreed to a stipulated term of three years doubled for the strike. Following
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the plea, the trial court immediately imposed judgment. The court awarded custody
credits in the total amount of 272 days (237 actual and 35 conduct). The court ordered
defendant to pay a conviction assessment of $30, a court operations assessment of $40,
and a restitution fine of $300, with an additional $300 parole revocation fine, which was
stayed pending successful completion of parole.
On January 1, 2021, defendant submitted a notice of appeal, which the court
received but did not immediately file. On January 28, 2021, in this court, defendant filed
a request for an order permitting the filing of a notice of appeal more than 60 days after
sentencing under the constructive filing doctrine. (In re Benoit (1973) 10 Cal.3d 72.)
This court granted defendant’s request for constructive filing of the notice of appeal and
deemed defendant’s notice of appeal timely for all purposes of appellate review.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts and procedural history of the case and requests this court to
review the record and determine whether there are any arguable issues on appeal.
(People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of his right
to file a supplemental brief within 30 days from the date the opening brief was filed.
Defendant filed a supplemental brief arguing the trial court unconstitutionally erred in
imposing sentence for his strike offense because he did not have a jury trial on the strike
allegation and because imposition of sentence for the strike placed him in double
jeopardy.
Defendant first contends that his sentence for the strike allegation was
unconstitutional because the sentence violated his constitutional right to jury trial under
Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] and Apprendi v. New
Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]. This contention is not supported by the
record. (See, e.g., People v. Kelly (2006) 40 Cal.4th 106, 126.) When the change of plea
was entered, defendant waived jury trial, admitted the prior strike conviction, and
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pursuant to the negotiated plea, received a three-year, low-term sentence which was
doubled based on the prior strike conviction. The rule of Cunningham does not apply to
the use of prior convictions to increase the penalty for a crime. (Cunningham, at pp. 274-
275 [166 L.Ed.2d at pp. 864-865]; see also Apprendi, at p. 490 [147 L.Ed.2d at p. 455];
Blakely v. Washington (2004) 542 U.S. 296, 301 [159 L.Ed.2d 403, 412].) Neither do the
authorities defendant cites support the proposition that he is constitutionally entitled to a
jury trial where he waives his right to a jury trial and admits a strike pursuant to a
negotiated plea.
Defendant further contends that because he had previously been punished for his
strike conviction, increasing his sentence in the instant case based on that conviction
violates the double jeopardy clause. There is no merit to this contention. “The Fifth
Amendment of the United States Constitution and article I, section 15 of the California
Constitution protect against multiple punishment for the same offense.” (People v.
$1,930 United States Currency (1995) 38 Cal.App.4th 834, 845.) The imposition of
sentence under the three strikes law, however, does not constitute multiple punishment
for the same offense. Although defendant’s status as a repeat offender subjects him to
harsher punishment under the three strikes law, he is not being punished in the instant
case for his strike conviction. (People v. White Eagle (1996) 48 Cal.App.4th 1511,
1520.) “Recidivist statutes do not impose a second punishment for the first offense in
violation of the double jeopardy clause of the United States Constitution.” (Ibid.) And
we see no reason why a different rule should obtain under the California Constitution.
(Raven v. Deukmejian (1990) 52 Cal.3d 336, 353 [“ ‘[C]ogent reasons must exist before a
state court in construing a provision of the state Constitution will depart from the
construction placed by the Supreme Court of the United States on a similar provision in
the federal Constitution’ ”].)
Finally, defendant requests “action” on a motion he filed in the trial court during
the pendency of this appeal, based on material outside of the record on appeal. Because
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defendant’s contentions are based on alleged facts outside the record on appeal, his
remedies, if any, must be found by way of a petition for writ of habeas corpus filed with
the trial court. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Having examined the record pursuant to Wende, we find no arguable error that
would result in a disposition more favorable to defendant. We therefore affirm the
judgment.
DISPOSITION
The judgement is affirmed.
/s/
Robie, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Duarte, J.
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