P. v. Gumpfer

Filed 7/23/07 P. v. Gumpfer 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

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Defendant Gabriel Isaac Gumpfer and his companions stole two fish filters and gift cards from a pet store. A jury found defendant guilty of second degree burglary and theft with a prior. (Pen. Code, 459, 666.)^[1] The court sentenced defendant to the upper term of three years on the burglary count and doubled the sentence because of a prior strike. The court sentenced defendant to two years for the theft with a prior and doubled the sentence because of the prior strike, but stayed sentence pursuant to section 654. Defendant appeals, claiming the court erred by imposing the upper term based on facts not found by the jury. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

An information charged defendant and two codefendants with second degree burglary and theft with a prior.^[2] The information also alleged defendant had been previously convicted of robbery. Defendant entered a plea of not guilty and denied the prior conviction.

A jury trial followed. The following evidence was introduced at trial.

Colette Hawkins worked at a pet store. Michelle Hook returned a fish filter valued at $149.99. Hook did not have a receipt, so she received a gift card for the total purchase. As Hook left the store, two men entered. They looked around the store and seemed paranoid. Hawkins watched as the men left the store with fish filters.

The men got into a white Jeep. Hawkins went to the car and saw Hook in the drivers seat. The fish filters sat in the back end of the vehicle. Hawkins yelled that the fish filters had been stolen. The Jeep took off, but Hawkins managed to write down the license number.

After the police arrived, Hawkins gave them the license number. A short time later, officers took Hawkins and two other store employees to a residence in Citrus Heights. At the residence, Hawkins saw the Jeep. The officers removed fish filters from the back seat and Hawkins identified them as the stolen merchandise. The filters were valued at $300 and $200. Hawkins also identified the two men in custody as the thieves.

After Hawkins returned to the store, she examined the fish filter Hook had returned. Using the store number written on the bottom of the filter, Hawkins contacted the store from which the filter had come and discovered it was missing.

Folsom Police Officer Kurt Knudsen investigated the pet store theft. A dispatcher gave officers the license number of the Jeep and the corresponding residence address. Knudsen and other officers waited near the address until the Jeep arrived. The officers held the three occupants, a woman and two men, at gunpoint.

After the Jeeps occupants were arrested, Knudsen searched the vehicle. Knudsen found two fish filters in the back of the Jeep. He also found a handbag containing gift cards and receipts. Hawkins arrived and identified defendant and the other man as the thieves.

Folsom Police Officer Sean Stokhaug accompanied Officer Knudsen to the address. He corroborated Knudsens version of events. A third officer received a red canvas bag from Knudsen. The officer confirmed the bag contained a receipt and gift cards. The receipt was for the fish filter earlier returned by Hook, which the parties stipulated was the filter missing from the other pet store.

The jury found defendant guilty of second degree burglary and theft with a prior.

The trial court found defendant committed the prior strike and sentenced him to the upper term of three years for second degree burglary, doubling the sentence to six years because of the prior strike. The court sentenced defendant to two years for theft with a prior, doubling the sentence to four years for the prior strike, but stayed execution of that sentence under section 654. Defendant filed a timely notice of appeal.

DISCUSSION

Defendant argues the trial court erred by imposing the upper term based on facts not found by the jury. According to defendant, his sentence violates his Sixth Amendment right to a jury trial. Defendant requests remand for a jury trial on the issue of recidivism or to be resentenced.

Background

At sentencing the court stated: Mr. Gumpfer, I was really surprised when I saw your record. Youre like a multistate, one man crime spree. Everywhere you go you leave a wake of a lot of crimes in your path. And, you know, I look at your record and I consider your age of 31 and, frankly, the system did you no good by showing you so much leniency over the years. [] Because perhaps if you had been strongly dealt with in your early life, you wouldnt be here sitting at the age of 31 going to prison for stealing a fish filter because, obviously, no one got your attention, and youve been getting away with crimes your whole life, and its finally caught up to you. [] I mean, you got a very lengthy record. And not just in California. Its like every state you go to you pick up a number of crimes. And its a drain on the system. . . . [Y]our record, in my view, necessitates that I give you the upper term. [] And Im going to give you the upper term, not based on your prior conviction that I found true beyond a reasonable doubt, but based on all of your other convictions all over the place in Georgia, in California, in Washington, in Oregon.

Discussion

In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, at p. 490.) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by the jurys verdict or admitted by the defendant. Thus, when a sentencing courts authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 303-305.)

In Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), the Supreme Court held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Cunningham, supra, 166 L.Ed.2d at p. 864.)

Here, however, the trial court cited as a basis for imposing the upper term the fact that defendants prior criminal adjudications and convictions both as a juvenile and an adult amounted to a one man crime spree, noting defendants history of crimes committed in numerous states. The imposition of the upper term based on these facts did not violate the rule of Apprendi, Blakely,and Cunningham because that rule does not apply to an aggravated sentence based on a defendants prior convictions. (Apprendi, supra, 530 U.S. at p. 490.)

DISPOSITION

The judgment is affirmed.

RAYE , Acting P.J.

We concur:

ROBIE , J.

BUTZ , J.

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^[1] All further statutory references are to the Penal Code.

^[2] The codefendants are not parties to this appeal.