P. v. Jones

Filed 3/27/06 P. v. Jones CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. James C. McGuire, Judge. Affirmed.

Carmela F. Simoncini, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Janelle Marie Boustany, Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant Derek Nicholas Jones (defendant) raises a single issue on appeal. He contends that the trial court abused its discretion in sentencing defendant to the upper term. For the reasons set forth below, we shall affirm the judgment.

I

PROCEDURAL BACKGROUND

On November 9, 2004, a felony complaint alleged that on October 14, 2004, defendant (1) entered Lawanna Suzuki's (the victim) van with the intent to commit larceny, in violation of Penal Code^[1] section 459 (count 1); (2) attempted to unlawfully drive the victim's van, in violation of section 664 and Vehicle Code section 10851, subdivision (a) (count 2); and (3) committed a forgery of a credit card slip, in violation of section 470, subdivision (a) (count 3). The complaint also alleged that defendant had a 1999 conviction for residential burglary, which was a strike within the meaning of sections 667, subdivisions (b) through (i), 1170.12, subdivisions (a) through (d), and a prison prior within the meaning of section 667.5, subdivision (b).

On January 25, 2005, defendant pled guilty to all three counts. He also admitted that he had the 1999 residential burglary conviction, which was a strike and a prison prior conviction. The plea was made in return for a disposition which permitted defendant to participate in the mental health court's STAR/probation program. The trial court placed defendant on probation on the condition he comply with the mental health court program. The court also granted a defense motion to strike the prior strike.

On July 5, 2005, defendant admitted that he violated probation by being under the influence of a controlled substance on May 25, 2005. Thereafter, the trial court revoked the probation and sentenced defendant to prison for (1) the upper term of three years for count 1; (2) half the upper term of three years for count 2 (stayed); (3) one-third the midterm for a total of eight months for count 3 (consecutive); and (4) one year for the prior prison conviction (consecutive), for a total term of 4 years 8 months.

II

DISCUSSION

A. The Trial Court Properly Sentenced Defendant

Defendant contends that the trial court abused its discretion in selecting the upper term for count 1 because the mitigating factors outweighed the aggravating factors. We disagree.

A trial court may impose the upper term when circumstances in aggravation outweigh the circumstances in mitigation. (§ 1170, subd. (b); People v. Nevill (1985) 167 Cal.App.3d 198, 202; Cal. Rules of Court, rule 4.420(b).) â€