P. v. Mora

Filed 6/21/06 P. v. Mora CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 THREE

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.

Julie Sullwold Hernandez, 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, Assistant Attorney General, Lilia E. Garcia and Scott C. Taylor, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Ricardo Ariel Mora appeals the sentence following his conviction for second degree robbery. (Pen. Code, §§ 211, 212.5, subd. (c), 213, subd. (a)(2).)^[1] He argues a violation of Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and that the court erroneously imposed the upper term. We disagree and affirm the judgment.

I

FACTS

In March 2001, the victim was standing in the driveway of his home when a car pulled into the driveway. The driver asked the victim for directions. When the victim approached the car window, the driver pointed a handgun at him and demanded his wallet. The victim complied. The driver told the victim not to follow or the driver would kill him. The victim called police and provided a description. Months later, in October 2001, defendant was stopped by Los Angeles County Sheriff's deputies. He had the victim's driver's license and other items from his wallet. He was arrested.

On November 4, 2003, the Orange County District Attorney filed an information charging defendant with second degree robbery. (§§ 211, 212.5, subd. (a), 213, subd. (a)(2).) The information alleged, pursuant to sections 12022.5, subdivision (a), and 12022.53, subdivision (b), that defendant personally used a firearm. The information also alleged that defendant had suffered a prior conviction pursuant to section 667.5, subdivision (b).

As part of a plea bargain, defendant pled guilty to the robbery charge and admitted the allegation pursuant to section 12022.5, subdivision (a). The allegation under section 12022.53, subdivision (b), was dismissed. The parties agreed that the court would sentence defendant to a term between five and sixteen years.

At the sentencing hearing, defendant was sentenced to the middle term, of three years on the robbery consecutive to the aggravated term of 10 years on the enhancement, for a total sentence of 13 years. Defendant moved for reconsideration of the sentence pursuant to section 1170, subdivision (d), and the court granted the request.

At the second sentencing hearing, the trial court found two aggravating factors to support the upper term on the robbery -- that defendant was on probation at the time of the offense and the offense involved violent conduct which was a danger to society. The court believed defendant's statements of remorse were sincere and also recognized defendant's drug addiction, but no mitigating factors were listed in the court's minute order. Defendant was sentenced to the upper term of five years on the robbery and the middle term of four years on the enhancement for a total sentence of nine years.

II

DISCUSSION

Sixth Amendment and Due Process

Defendant argues the imposition of the aggravated term for robbery violated his Sixth Amendment and due process rights right to a jury trial because the aggravating factors were not admitted as part of defendant's guilty plea. He relies on Blakely, supra, 542 U.S. 296 (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). The California Supreme Court rejected defendant's argument in People v. Black (2005) 35 Cal.4th 1238 (Black).

In Black, supra, the high court concluded California's determinate sentencing law meets federal Constitutional standards. â€