Filed 2/17/23 P. v. Cr esham CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIAM M A RTIN CRESHAM

,
Defendant and Appellant. B 320204

Los Angeles County Super. Ct. No. MA075346

APPEAL from an order of the Superior Court of Los Angeles County, Kathleen Blanchard , Judge. Affirmed.

Patrick J. Hoynoski, under appointment by the Cour t of Appeal, fo r Defendant and Appellant.

No appearance for Plaintiff and Respondent.

——————————2 We review this appeal pursuant to People v. Wende (1979)
25 Cal.3d 436. We affirm. On February 5 , 2019, the People filed a four

- count informa tion against ap pel lant. Co un t 1 charged assault by

means l ikely to produce great bodi l y injury , a violation of Penal
Code 1 section 24 5 , subdivisi on (a)(4). Count 2 charged criminal
threats , a violation of section 422. Counts 3 and 4 charged misdemeanor contempt of c ou rt , violati o n s of section 166, subdivision (c)(1) . As to Counts 1 and 2, the information alleged appellant was previously c onvicted of two serious and/or violent felonies and suffered two prison prio r s in violation of section s 447
subdivisions (b) through ( j ) and 665 .5

. As to Count 2, t he
information also alleged appe l lant suffered two prior serious felony convictions in violation of section 667 , subdivision (a)(1). On May 3, 2019, a jury c onvicted appellant of all four counts and

, in a bifurcated bench trial, the c ou rt found app ellant had
sustained the prior convictions and prison priors as alleged

. At sentencing o n December 19, 2 019, the trial court struck
the five

- year prison prio rs alleged as to Count 1. The court imposed eight years in state prison on C ount 1: t h e upper term of
fo ur years doubled pursuant to section 667, subdivision (e) (1). It
sentenced appellant to 25 years to life on Count 2. It added two

5

- year prison prio rs as to Count 2, for a total aggregate term of 25 years to life plus 1 8 years. Appe ll ant was also sentenced on
C ounts 3 and 4 to concurrent time.
On J une 11, 202 1, t his court affirmed the convictions and

se ntence. (

People v. Cresham (Jun e 11, 2021, B303803 ) [nonpub. opn.].)

1 Undesignated stat utory references are to the Pen al Code.3 The charges arose w h en appellant b eat his girlfrie nd and
threa te n ed to kill her. At the time of the a s sault

, appellant wa s also under a 10

- year criminal protective order to stay away from
the victim

. (

People v. Cresham , supra, B303803

. ) On March 7, 2022, appellant filed a petition for recall of
his se n tence (sp ec if

i call y the upper term sentence of eight ye ars on Count 1) based on Senate Bill No. 567 (2021

– 2022 Reg. Sess

. )

. He argued the facts justifying the upper term were not found by a jury , as r equired by the new law

. Senate Bill No. 567 amend s

se ction s 11 7 0 an d 1170.1 and provide s that the cou rt may impose

a se ntence exceeding the middle term only when the r e are circumstances in aggravation of the crime that justify the imposition of a te rm of imprisonment exceeding the middle term
and the fac ts u nder l yin g th os e circumstances have been stipulat ed to by the defen dant or have been found true beyond a
reasonable doubt a t trial by the jury or by a judge in a court trial. (§ 1170

, subd. (b)(2).) Howeve r, Senate Bill No. 567 also provide s that the cour t may con sid er a defendant ’ s prior conv ictions in determining a sentenc e based o n a certified record of conviction

, without submitting the prior convictions to a jury. ( § 1170 , subd

. (b) (3) .)
On A p ril 21, 2022, the trial court denied the petition for

reca ll of sen ten ce , finding that the upper ter m previo usly imposed on Co unt 1 was based on prior conv ictions proven to the

court beyond a reasonable doubt at the bifurcated court trial o n May 3, 2019. On May 6, 2022, a ppella n t filed a timely notice of

appea l.4 W e appoi nte d counsel to repre sent appellant. After examining the record, counsel filed an opening brief raising no
issues and ask ed this co urt to review the record independently

, citing People v. Serrano ( 2012 ) 211 Cal.App.4 th 496. On
Nov ember 2 8 , 2022, we advi sed a p pellant , pursua nt to People v.
Wende

, that he had 30 days within which to personally submit any contentions or iss ues he w ished us to cons ider. Appellant did
not file a supplemental brief

. We acknowledge we are permit ted to decline to indepe ndentl y revi ew the r e cord before us if all conditions required by People v. Delgadillo (202 2 ) 14 Cal.5 th 216 are met. In this appeal

, we failed to advise appellant that his appeal
would be dismissed as abandoned if he did not file a supplemental b r ief. T his ad visem ent is required by People v. Delgadillo

. For that rea son, we con duct an independe nt review

pursua nt to Pe ople v. Wende

. ( Delgadillo

, at p. 222.)
We have examined the entire record before us and are
satisfied appellate counsel has f ully compli ed wit h h is

re sponsibi lities and no arguable i s sues exist. ( People v. Kelly (2006) 40 Cal.4 th 106, 109

– 110; People v. Wende , supra, 25 Cal.3d

a t p. 441.)5 DISPOSITION
The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.

STRATTON

, P. J.

We c on cur:

GRIMES

, J.

VIRAMONT E S, J.