P. v. Reyes

Filed 10/27/06 P. v. Reyes CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

Appellant Francisco Javier Perez-Reyes raises one issue on appeal from a final judgment which resulted in his receiving a criminal sentence of four years four months in state prison. He contends he was entitled to have a jury decide beyond a reasonable doubt the truth of the sentencing factors relied on by the trial court to impose the aggravated term of three years in state prison for the principal term selected at sentencing, relying on Blakely v. Washington (2004) 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466. We reject appellant’s claim. (People v. Black (2005) 35 Cal.4th 1238 (Black).)

II.

Because of the narrow, limited issue raised on appeal, a lengthy recitation of either the factual or procedural backgrounds of the underlying cases is unnecessary. This appeal arises out of three separate criminal cases brought against appellant. The first of these, case number FCR216539, alleged in a felony complaint filed on June 21, 2004, that appellant had violated Vehicle Code sections 10851, subdivision (a) (unlawful taking or driving a vehicle), and 14601.1, subdivision (a) (driving when privileges suspended or revoked). A plea bargain was subsequently entered by which appellant agreed to plea no contest to the violation alleged in count one (Veh. Code, § 10851, subd. (a)), in return for which he was placed on probation with conditions, including 90 days county jail time.

While appellant was on probation, a three-count information was filed in case number FCR218781 on October 12, 2004, alleging that appellant committed second degree burglary of a vehicle (Pen. Code, § 459), attempted unlawful taking or driving a vehicle (Pen. Code, § 664/Veh. Code, § 10851, subd.(a)), and possession of burglar’s tools (Pen. Code, § 466).

While case number FCR218781 was pending, a new information was filed in case number FCR219145, on December 28, 2004, alleging a new count of unlawful taking or driving a vehicle (Veh. Code, § 10851, subd. (a)), receiving stolen property (Pen. Code, § 496d, subd. (a)), and a new violation of Vehicle Code section 14601.1, subdivision (a) (driving when privileges suspended or revoked).[1] A motion was made by the prosecution to consolidate these latter two cases which, although opposed, was subsequently granted. In the meantime, on September 24, 2004, the court revoked appellant’s probation granted in case number FCR216539.

Trial of the consolidated cases took place on October 20, 21, and 24, 2005. Upon its conclusion, the jury found appellant guilty of unlawful taking or driving a vehicle (Veh. Code, § 10851, subd. (a)), receiving stolen property (Pen. Code, § 496d, subd. (a)), second degree burglary of a vehicle (Pen. Code, § 459), and attempted unlawful taking or driving a vehicle (Pen. Code, § 664/Veh. Code, § 10851, subd. (a)).[2] Sentencing was set for November 22, 2005, and the matter was referred to the probation department for a presentence evaluation. Sentencing was thereafter continued to November 29.

A presentence/supplemental report was lodged with the court on November 16, and filed on November 29. Noting appellant’s presumptive ineligibility for a further grant of probation, the report recommended that appellant receive the aggravated term of three years state prison for his conviction of unlawful taking of a vehicle, and consecutive subordinate terms of eight months each (one-third the midterm sentence for those offenses) for the remaining convictions not stayed under Penal Code section 654, for a recommended aggregate sentence of four years four months in state prison.

Appellant filed a reply to the sentencing report disputing the presence of aggravating factors, and urging the court to impose the midterm for the principal term selected, and to impose concurrent terms for the balance of the convictions.

At sentencing, and after counsel were afforded an opportunity to be heard, the court found as aggravating facts that: (a) the manner in which the crimes were carried out indicated planning and sophistication (Cal. Rules of Court, rule 4.421(a)(8)[3]), (b) appellant’s prior convictions were increasing in seriousness (rule 4.421(b)(2)), (c) appellant was on probation at the time of the current offenses (rule 4.421 (b)(4)), (d) appellant’s prior performance on probation was poor (rule 4.421(b)(5)), and (e) appellant lacked remorse for having committed the crimes (rule 4.414(b)(7)).[4] The court also found that there were no mitigating factors (rule 4.423).

As a result, the court selected the conviction for violating Vehicle Code section 10851, subdivision (a) in case number FCR219145 as the principal term and imposed the aggravated term of three years state prison. The court also imposed one-third the midterm for the second degree burglary conviction (Pen. Code, § 459) in case number FCR218781, and a similar term for the violation of Vehicle Code section 10851, subdivision (a) in case number FCR216539, the first case in which probation had been granted and later revoked. These terms were ordered to be served consecutively.[5] The imposition of sentence on all other convictions was stayed under Penal Code section 654. No objection was made by appellant’s counsel at the sentencing hearing to the terms imposed.

III.

Respondent first urges that the failure to object at the sentencing hearing waives any right to challenge the sentence imposed on appeal. (People v. Scott (1994) 9 Cal.4th 331, 348.) Appellant counters that there can be no forfeiture by failing to object where the right involved is that to a jury trial.

We need not decide the waiver/forfeiture issue because on the merits we reject appellant’s contention that he was entitled to a jury trial as to the truth of aggravating factors used in sentencing. As appellant acknowledges, the California Supreme Court in Black, supra, 35 Cal.4th 1238, has held that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.) In reaching this conclusion, the Black court expressly stated that, under California’s sentencing system, “the upper term is the ‘statutory maximum’ and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the principles set forth in Apprendi [v. New Jersey, supra, 530 U.S. 466], Blakely [v. Washington, supra, 542 U.S. 296], and [United States v.] Booker [(2005) 543 U.S. 220].” (Black, supra, 35 Cal.4th at p. 1254.)

Black is binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Therefore, we reject appellant’s contention that his upper term sentence violates his constitutional rights.^[6]

IV.

The judgment is affirmed.

_________________________

Ruvolo, P. J.

We concur:

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Sepulveda, J.

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Rivera, J.

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[1] The information also included a count of child abuse (Pen. Code, § 273a, subd. (a)), but this count was subsequently dismissed by the court.

[2] Two remaining counts, one alleging possession of burglary tools and one of driving while privileges suspended, were dismissed by the prosecutor at the beginning of trial.

[3] All further undesignated rule references are to the California Rules of Court.

[4] This last factor is not an enumerated factor supporting imposition of the aggravated term (rule 4.421), but one affecting the decision whether to grant probation (rule 4.414). It is not entirely clear whether the court intended to rely on this additional ground to aggravate the sentence imposed on the principal term or to bolster its decision to deny probation. In any event, even if the trial court incorrectly relied on this factor as a ground to impose the aggravated term, the other factors enunciated by the court are sufficient to support the sentence, and appellant does not argue otherwise on appeal. (See People v. Osband (1996) 13 Cal.4th 622, 730; People v. Burbine (2003) 106 Cal.App.4th 1250, 1263-1264.)

[5] Appellant does not contest the court’s imposition of consecutive terms on the basis that the offenses all occurred at separate times and at separate places.

[6] The issue whether the imposition of upper terms under California’s Determinate Sentencing Law is subject to the constraints of Blakely and Apprendi is now pending before the United States Supreme Court in People v. Cunningham (Apr. 18, 2005, A103401 [nonpub. opn.]), cert. granted sub. nom. Cunningham v. California Feb. 21, 2006, No 05-6551, ___ U.S. ___ [126 S.Ct. 1329, 164 L.Ed.2d 47].