P. v. Gonzales
Filed
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. JUSTIN ERIC GONZALES, Defendant and Appellant. | F050109 (Super. Ct. No. 1101949) O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Edward M. Lacy, Jr., Judge.
Larry L. Dixon, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Michael A. Canzoneri, Deputy Attorney General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant, Justin Eric Gonzales, was found guilty after a jury trial of felony vehicle theft (Veh. Code, § 10851, subd. (a), count one) and felony evasion of a peace officer (Veh. Code, 2800.2, subd. (a), count two). On
On appeal, Gonzales contends the trial court violated his right to a jury trial when it relied on aggravating factors to impose the upper term sentence. (Cunningham v.
FACTS
Offense
On
Modesto Police Officer Troy Cross observed Gonzales driving the red truck shortly after receiving a dispatch that the truck was stolen. Cross followed Gonzales and activated his lights and siren to effectuate a vehicle stop. Gonzales immediately went into the opposite lane of traffic and passed three cars. Cross determined it was unsafe to chase Gonzales. Gonzales crashed into a parked vehicle and fled on foot.
Cross radioed for assistance to set up a perimeter. Officer Jared Ramirez spotted Gonzales and ordered him to the ground. Gonzales complied and was handcuffed. Gonzales spontaneously stated that he was going to hide in a refrigerator but was out of breath.
Sentencing
The probation officer's report noted there were no mitigating factors. The report listed six aggravating factors: (1) the manner in which the crime was carried out indicates planning, sophistication, or professionalism; (2) appellant's sustained petitions in juvenile delinquency proceedings are numerous and of increasing seriousness; (3) appellant served a prior commitment in the California Youth Authority (CYA); (4) appellant was on CYA parole when the instant offense was committed; (5) appellant's prior performance on probation and/or parole was unsatisfactory; (6) appellant was not a licensed driver when he committed the instant offense.
The court noted there was nothing mitigating about appellant's case. The court noted that had appellant been tried with a minimal record or no record, the People would likely recommend probation. The court found true the first five aggravating factors and expressly applied them to deny appellant probation. The court found no possible factors in support of granting appellant probation.
In applying the upper term sentence, the court noted it could not use the same factors it applied in denying appellant probation. The court found true factor six, that appellant was not a licensed driver when he committed the offense. The court noted it would not consider this factor â€