P. v. Magdaleno
Filed 2/14/07 P. v. Magdaleno CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. RAMON JAMES MAGDALENO, Defendant and Appellant. | F049394 (Super. Ct. No. 29622) OPINION |
APPEAL from a judgment of the Superior Court of Merced County. Brian L. McCabe, Judge.
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Ramon James Magdaleno appeals his convictions for evading arrest and driving with a suspended license. Magdaleno contends that the trial court erred in denying his request to change from self-representation to counsel-representation. He also contends that the trial court erred in using a prior prison term as both an enhancement and an aggravating factor. Finally, he complains that his sentence is unconstitutionally excessive under Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We agree that the one-year enhancement for the prior prison term was erroneous and should be stricken. We affirm the judgment in all other respects.
STATEMENT OF THE CASE
In a complaint filed on February 28, 2005 and subsequently in a superseding information filed on July 7, 2005, the Merced County District Attorney charged Magdaleno with one count of evading an officer with willful or wanton disregard for safety (Veh. Code, § 2800.2, subd. (a) count 1) and one count of driving with a suspended or revoked license (Veh. Code, § 14601.1, subd. (a), count 2). As to count 1, it was further alleged that Magdaleno previously had been convicted of a felony in Oregon, and had served a prior prison term (Pen. Code, § 667.5, subd. (b)).
On February 28, 2005, Magdaleno pled not guilty to all the charges, and denied the enhancement.
On April 21, 2005, Magdaleno made a motion, pursuant to Faretta v. California (1975) 422 U.S. 806 (Faretta), to represent himself in propria persona. Magdaleno's Faretta motion was granted.
On August 23, 2005, the court empanelled a jury. The court also denied Magdaleno's request to change from self-representation to counsel-representation. Following a four-day jury trial, on August 26, 2005, the jury found Magdaleno guilty on both counts, and found true the allegation that Magdaleno had served a prior prison term.
On September 30, 2005, the trial court denied probation and sentenced Magdaleno to a term of four years in state prison, consisting of an upper term of three years, plus one year enhancement for the prior prison term. The court imposed a concurrent term for count 2. Magdaleno received 324 days for time served and statutory credit. He also was ordered to pay a restitution fine of $400. A second $400 restitution fine was imposed but suspended pending successful completion of parole.
The trial court sentenced Magdaleno to the aggravated term based upon three aggravating factors: (1) appellant's prior prison term in Oregon; (2) appellant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings were numerous or of increasing seriousness; and (3) appellant was on parole when the crime was committed. The court found no mitigating factors.
On November 29, 2005, Magdaleno filed a timely notice of appeal.
FACTS
On the evening of February 26, 2005, the Los Banos Police Department conducted a DUI checkpoint. Officer Joseph Vieira was working at the checkpoint that evening. He was advised by Officer Elias Reyes that a vehicle had turned off the highway about a half a block before the checkpoint. Officer Vieira got into a patrol vehicle and attempted to intercept the vehicle.
As Officer Vieira headed towards his intended interception point, he observed a vehicle coming toward him. The vehicle was traveling at a rate of speed higher than the posted 25 miles per hour, and it failed to stop at a stop sign. As the vehicle passed him, the officer noted that it was a four-door Crown Victoria with a male driver. At that time, Officer Vieira made a U-turn and activated the lights and sirens on his vehicle in an attempt to make a traffic stop.
Officer Vieira chased the vehicle for three and a half miles through residential neighborhoods at speeds between 60 and 80 miles per hour. During the chase, the vehicle ran approximately six stop signs and three red lights. As he pursued the vehicle, Officer Viera described the vehicle over police radio as a tan-colored Crown Victoria. Officer Vieira subsequently lost sight of the vehicle.
On the evening in question, Officer Raymond Reyna was on patrol. Officer Reyna picked up the police broadcast and spotted the vehicle as it ran a stop sign. This occurred approximately two minutes after Officer Vieira lost sight of the vehicle.
Officer Reyna pursued the vehicle for approximately 20.9 miles, through residential areas and country roads. The vehicle was traveling at varying speeds of up to 90 miles per hour as it ran several more stop signs and drove on the wrong side of the road for several blocks. The chase finally ended when the vehicle ran over a spike strip that had been laid out by the sheriff's department. Magdaleno, the driver of the vehicle, was arrested. Additionally, police dispatch discovered that Magdaleno's license had been suspended.
Magdaleno was charged, and after a jury trial, was convicted of evading an officer with wanton and willful disregard for safety and of driving with a suspended license.
DISCUSSION
I.
Motion To Change From Self-Representation To Counsel-Representation
Magdaleno's first claim of error is that the trial court abused its discretion by denying his motion to change from self-representation to counsel-representation.
The relevant factors for a trial court to consider when ruling on a defendant's request to change from self-representation to counsel-representation include: â€
