P. v. Gamboa

Filed 4/25/07 P. v. Gamboa CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Marsha Slough, Judge. Reversed with directions.

Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Christine Levingston Bergman and Robert M. Foster, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Ricardo Delarosa Gamboa challenges his sentence after a contested probation revocation hearing because the trial court imposed the upper term based on facts not found by the jury. As discussed below, we agree that the sentence violates Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). Therefore, we shall remand the matter to the trial court for resentencing.

I

FACTUAL AND PROCEDURAL HISTORY

On March 22, 2006, defendant stabbed a man nine times. On March 27, 2006, a complaint charged defendant with one count of assault with a deadly weapon under Penal Code section 245, subdivision (a)(1). The complaint also alleged that defendant inflicted great bodily injury under Penal Code section 12022.7, subdivision (a).

Pursuant to a plea bargain, defendant entered a guilty plea to the assault charge, and the enhancement allegation was dismissed. On May 3, 2006, the trial court placed defendant on three years formal probation on certain terms and conditions, which included not possessing any weapons, cooperating in field interrogations, and carrying a valid identification at all times.

After defendant was released from jail on June 12, 2006, he failed to attend a probation orientation program as he had been ordered to do. On July 27, 2006, Probation Officer Darren Gee was called to a residence on Sunnyside Avenue in connection with issues concerning a different probationer. There, he saw defendant walking away from the residence. Officers instructed defendant to stop and show his hands. Defendant refused; he continued to walk away. One officer detained defendant and patted him down. The officer found a three and one-half inch dual-edged dirk in defendants pants pocket. When Gee asked defendant to identify himself, defendant gave the officer several false names. Moreover, when Gee asked defendant if he was on probation, defendant stated that he was not. Furthermore, defendant had no identification on his person.

On August 1, 2006, the prosecution filed a petition to revoke probation, alleging that defendant had violated certain terms of probation by: (1) possessing a three and one-half inch dirk; (2) declining to cooperate in a field interrogation; (3) failing to show identification to police; and (4) failing to report to probation orientation.

At a contested revocation hearing on September 28, 2006, the court found all four allegations true. Therefore, the trial court revoked defendants probation and sentenced him to the upper term of four years in state prison.

II

ANALYSIS

Defendant contends that the trial court violated his Sixth Amendment right to a jury by imposing the upper term sentence.

The trial court imposed the upper term sentence of four years on defendants conviction for assault with a deadly weapon in violation of Penal Code section 245, subdivision (a)(1). In doing so, the trial court found that the factors in this case[,] particularly the probation violation of carrying a dirk or violation of term 8, where [defendant had] been order[ed] . . . not to possess a deadly weapon constitutes grounds for the aggravated term of four years.

The upper term sentence runs afoul of Cunningham, in which the Supreme Court held that Californias determinate sentencing law violates a defendants Sixth Amendment right to a jury trial to the extent it allows for increased punishment based on facts, other than a prior conviction, which were not found by a jury. Therefore, we will vacate defendants sentence and remand this matter to the trial court for further proceedings consistent with Cunningham.

III

DISPOSITION

Defendants sentence is vacated and the matter is remanded for further proceedings consistent with Cunningham.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ Richli

J.

We concur:

/s/ McKinster

Acting P.J.

/s/ Miller

J.

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