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P. v. Gonzales

P. v. Gonzales
03:02:2007

P


P. v. Gonzales


Filed 2/21/07  P. v. Gonzales CA5


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


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.


-ooOoo-


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 March 24, 2006, the trial court sentenced Gonzales to the upper prison term of three years on count one and to a concurrent upper term sentence on count two of three years.  The court imposed a restitution fine and granted Gonzales 159 days of custody credits


            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. California549 U.S. __ [127 S.Ct. 856] (Cunningham).)  We disagree and affirm.


FACTS


Offense


            On December 8, 2005, Katherine Davis was sitting in her parked car in a supermarket parking lot when two men drove up beside a red truck parked nearby and walked around it.  The men got back into their vehicle and drove up beside the truck.  A few minutes later, Gonzales climbed feet first into the passenger window of the red truck.  He positioned himself behind the steering wheel and leaned over it.  Within three minutes, he started the truck and drove away.  Davis called the police to initially report suspicious behavior.  Later she called the police to report that the truck was stolen.


            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€





Description Appellant, was found guilty after a jury trial of felony vehicle theft (Veh. Code, S 10851, subd. (a), count one) and felony evasion of a peace officer (Veh. Code, 2800.2, subd. (a), count two). On March 24, 2006, the trial court sentenced Gonzales to the upper prison term of three years on count one and to a concurrent upper term sentence on count two of three years. The court imposed a restitution fine and granted Gonzales 159 days of custody credits.
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. California549 U.S. __ [127 S.Ct. 856] (Cunningham).) Court disagree and affirm.

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