P. v. Rodriguez

Filed 10/27/06 P. v. Rodriguez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 Riverside County. John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Marta I. Stanton, 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, Jeffrey J. Koch, Supervising Attorney General, and Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, for Plaintiff and Respondent.

Appellant Patricia Rodriguez (appellant) contends that her constitutional right to a fair trial was violated because the trial court imposed the upper-term prison sentence for her burglary convictions. We disagree and will affirm.

FACTUAL AND PROCEDURAL HISTORY

On November 22, 2004, appellant stole a computer from the medical records department of Desert Regional Medical Center. Prior to trial, appellant admitted that she had suffered a prior theft conviction. On September 6, 2005, a jury convicted her of burglary (Pen. Code,^[1] § 459; count 1); of theft (§ 666; count 2); and of receiving stolen property (§ 496; count 3).

The probation report filed October 7, 2005, revealed that between 1996 and 2003 appellant had a total of 18 convictions and parole violations for a variety of offenses. Her record included two theft-related felonies: burglary and petty theft with a prior. (§§ 459 & 666.) In addition, she had three separate pending Vehicle Code cases, each with multiple violations.

At several points during the sentencing hearing, also on October 7, 2005, the trial court explained its inclination to choose the upper term for the burglary offense. Regarding appellant’s past convictions, the trial court said, “We are talking about thefts, lot of thefts through all these years.” Regarding appellant’s past grants of probation: “Her prior performance on probation is horrible.” Regarding the present crime: “[T]his was a planned theft so the entry and stealing was planned. . . . she knew exactly what she was looking for and how to get it out of the place.” And, “She was on probation when she committed this crime. She failed several prior probations. . . . So the upper term just jumps out at me.”

The court sentenced appellant to the upper term of three years for the burglary, stayed the sentence for the theft with a prior pursuant to section 654, and dismissed the conviction for receiving stolen property pursuant to section 1385.

DISCUSSION

Invoking the United States Supreme Court’s decision in Blakely v. Washington (2004) 542 U.S. 296 (Blakely), appellant contends that her sentence violates due process under the Fifth and Sixth Amendments because the factors the court used to select the upper term were not found by a jury nor proven beyond a reasonable doubt. Respondent replies that we are bound to follow the California Supreme Court’s decision last year in People v. Black (2005) 35 Cal.4th 1238 (Black), and that in any case the trial court here would have imposed the upper term solely on the basis of appellant’s prior convictions.

Respondent is correct about this court’s duty to follow Black. (Auto Equity Sales Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Even were we not so bound, however, we would not find appellant’s sentence in violation of Blakely, because this case falls squarely into the exception articulated by the majority in that case: “‘Other than the fact of a prior conviction, any fact that increases the penalty . . . must be . . . proved beyond a reasonable doubt.’” (Blakely, supra, 542 U.S. at p. 301, quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490, italics added.) Facts properly used to impose an aggravated term may either be those “reflected in the jury verdict“ or those “admitted by the defendant.“ (Blakely, at p. 303.)

The record here demonstrates that it was appellant’s prior convictions (at least one of which she admitted before trial), the exception to the Blakely rule, that the trial court used to select the upper term. As the court pointed out at the sentencing hearing, appellant’s criminal record stretched back several years and included many prior thefts. In addition, before pronouncing sentence, the court explained why it considered the upper term appropriate: “I know I can go lower, and if it wasn’t for the extensive record[,] because of her raising her children and working, I would. But I can’t ignore what is in front of me.”

We conclude that the trial court properly selected the upper term based on appellant’s record of prior convictions and that the sentence in no way violates the prohibitions of Blakely.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ RAMIREZ

P. J.

/s/ RICHLI

J.

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^[1] All further statutory references will be to the Penal Code unless otherwise indicated.