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Filed 10/14/20 P. v. Smith CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Yuba)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

TORIANO GERMAINE SMITH,

Defendant and Appellant. C090676

(Super. Ct. No. CRF191178)

Appointed counsel for defendant Toriano Germaine Smith filed an opening brief

that sets forth the facts of the case and asks this court to review the record and determine
whether there are any arguable issues on appeal. ( People v. Wende (1979) 25 Cal.3d

4 36.) After examining the record, we find no arguable error that would result in a
disposition more favorable to defendant and affirm.2 FACTUAL AND PROCEDURAL BACKGROUND

In June 2019 the victim stored his checks at his business in a desk located in a
public lobby. He noticed a pending check for $1,400 that he did not recognize on his
checking account; he stopped payment on the check and contacted law enforcement. The
pending check number was missing from his checkbook. Surveillance video from the
previous day showed defendant entering the lobby and removing a check from the
checkbook. At the time, defendant was on parole with GPS monitoring, and his GPS data
showed that he had been at the bank where the missing check was cashed.
In July 2019 defendant w as charged with forgery relating to a check exceeding
$950 in value (Pen. Code, §§ 476, 473, subd. (a)). 1 It was further alleged that he had a
prior strike conviction (§§ 667, subds. (b)

- (j), 1170.12).
On July 17, 2019, defendant pleaded no contest to the forgery offense and
admitted the strike prior in exchange for no more than the low term (doubled) of 32
months in prison and the ability to file a Romero 2 motion before sentencing; under the
terms of the agreement, an unusual case finding was necessar y before probation could be
granted. He also agreed to a Cruz waiver; if he violated the Cruz waiver, defendant
stipulated to the maximum term of six years. 3 The parties stipulated that the police report
could serve as the factual basis for the plea.
Prior to sentencing defendant filed a Romero motion, requesting that the trial court
strike his strike prior. The People opposed the motion. The court denied the motion,
finding defendant fell within the spirit of the three strikes law given his lengthy criminal

record.

1 Further undesignated statutory references are to the Penal Code.

2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

3 People v. Cruz (1988) 44 Cal.3d 1247 , 1254.3

In August 2019 the trial court sentenced defendant to the low term of 16 months
for the forgery offense, doubled to 32 months for the strike prior. The court imposed a
$300 restitution fine (§ 1202.4, subd. (b)), a $300 parole revocation restitution fine,
which was stayed unless parole was revoked (§ 1202.45), a $40 court operations
assessment (§ 1465.8), and a $30 court facilities assessment (Gov. Code, § 70373). The
court awarded defendant 10 days of actual credit and 10 days of conduct credit for a tot al
of 20 days of credit. Defendant timely appealed, and the trial court denied his request for
a certificate of probable cause.

DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief setting forth the facts of the case and requesting that this court review the record to

determine whether there are any arguable issues on appeal. ( People v. Wende , supra , 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30
days of the date of filing of the opening brief. More than 30 days elapsed, and we

received no communication from defendant.
Having undertaken an examination of the entire record, w e find no arguable error
that would result in a disposition more favorable to defendant.4 DISP OSITION
The judgment is affirmed.

/s/ Duarte, Acting P. J.

We concur:

/s/ Hoch, J.

/s/ Renner, J.