P. v. Sanchez

Filed 5/7/08 P. v. Sanchez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Richard J. Oberholzer, Judge.

Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

PROCEEDINGS

Appellant, Edgar Saucedo Sanchez, was charged in an information filed March 22, 2007, with robbery (Pen. Code,  211 & 212.5, subd. (c), count one),^[1]and recklessly evading a peace officer in a motor vehicle (Veh. Code,  2800.2, count two). A gun use enhancement ( 12022.53, subd. (b)) was alleged as to count one.

At the conclusion of a jury trial, Sanchez was found guilty on May 25, 2007, of both counts. The jury found the gun use enhancement true. On June 21, 2007, the trial court sentenced Sanchez to the upper term of five years on count one and consecutive terms of ten years for the gun use enhancement and eight months for count two. Sanchezs total prison term is 15 years 8 months. On appeal, Sanchez contends that imposition of the upper term to count one pursuant to the amended version of section 1170 was an unconstitutional ex post facto law.

FACTS

On February 23, 2007, Jaswant Kaur was working at Freeway Express Mart just south of Mettler on Highway 99. Sanchez came into the store, handed Kaur $20 to purchase gasoline, went out to a red van, and pumped it with gasoline. Sanchez returned to the store, pulled out a gun, and told Kaur: Open the register. Otherwise I [will] kill you. Kaur, who was very scared, could not open the register. She told Sanchez the register would only open when she registered a sale.

Kaur offered Sanchez $300 in change money that was lying in another box outside the register. Sanchez came inside the counter, stood next to Kaur, pointed his gun at Kaur, and told her to give him the money because he would kill her. Sanchez took all of the currency from the change box except for one $20 bill. Kaur watched Sanchez leave in the van and wrote down the license plate number. Kaur then called the police. Kaur later identified Sanchez to the police after they arrested him.

Kern County Sheriffs Deputy William Hinkle heard a dispatch concerning the robbery at 5:30 p.m. The report described the robber as driving a red van and included a partial license plate number. About two minutes later, Hinkle saw a red van traveling south on Interstate 5 at a high rate of speed and recklessly changing lanes. It took Hinkle over a mile to catch up with the van. The license plate was almost an exact match to the description from the dispatch.

Sanchez made a furtive motion that concerned Hinkle, who thought Sanchez may have been reaching for a gun. Hinkle did not immediately activate his red lights and followed Sanchez nine or ten miles. The dispatcher informed Hinkle that California Highway Patrol (CHP) units would be waiting at the Smokey Bear Road to assist him. Sanchez slowed then accelerated to 115 miles per hour. Hinkle activated his red lights and siren. Two miles past Smokey Road, a CHP car joined Hinkle in the chase.

Hinkle was joined by CHP Officer Pablo Castaneda. Hinkles red lights and siren were in operation when Castaneda joined the chase. Castaneda also activated his lights and siren. Another CHP officer arrived. Sanchez drove erratically when approaching slower traffic, changing lanes without using his turn signal. Sanchez used the shoulder at one point. Castaneda left the chase after some 25 to 28 miles.

Officer Ryan Patrick of the CHP was following Sanchez when Sanchez exited the freeway at Calgrove Boulevard. Sanchez was traveling at 100 miles per hour. Midway down the exit ramp, Sanchez locked his brakes, skidding about 400 feet toward a stop sign and he almost hit another vehicle. Sanchez went through the intersection without stopping at approximately 35 miles per hour. Once on Calgrove Boulevard, Sanchez accelerated to 80 miles per hour. At the intersection with Old Road, Sanchez turned and accelerated to 80 miles per hour.

Old Road turned into San Fernando Road. Sanchez continued traveling south on San Fernando Road. At the intersection of Balboa Road, Sanchez went over a double yellow line to move around stopped traffic, actually traveling in the northbound land, and then accelerated through a green light to about 90 miles per hour. Sanchez turned west onto Hubbard Street. Although Sanchez slowed down through intersections, he was driving at 80 miles per hour. The speed limit was no more than 55 miles per hour.

Sanchez eventually slowed to 20 miles per hour to turn onto Aztec into a residential neighborhood. After 300 yards, Sanchez slowed to 15 miles per hour and jumped out of his van. The van continued moving at 10 to 15 miles per hour until it went over a sidewalk and collided with a tree in front of a house. Sanchez ran through a yard until Patrick forcibly subdued him with other officers. After his arrest, an officer searched Sanchez and found money totaling $214.71, which included $109 in dollar bills.

DISCUSSION

Sanchez argues that his upper term sentence on count one violated his right to a jury trial under the Sixth and Fourteenth Amendments for aggravating factors used by the trial court to apply an upper term sentence. Sanchez notes he did not waive his right to a jury trial on this issue and did not admit any aggravating factor used by the trial court. Sanchez acknowledges that the trial court applied the amended version of the Determinate Sentencing Law (DSL), section 1170, passed by the Legislature on March 30, 2007. (Amended by Stats. 2007, ch. 3,  2 (S.B. 40).)

Sanchez further acknowledges the California Supreme Court found in People v. Sandoval (2007) 41 Cal.4th 825, 845-857 (Sandoval), that the amended DSL could be applied retroactively to offenses, such as his, that occurred prior to the amendment to the statute. (Id. at p. 856-857.) Sanchez challenges the reasoning of Sandoval to preserve the issue for federal review. Sanchez concedes we are bound by the holding in Sandoval. (Auto Equity Sales, Inc.v.Superior Court (1962) 57 Cal.2d 450, 455.) We will affirm.

In selecting the upper term sentence, the trial court found Sanchez was on two separate grants of misdemeanor probation when the crime was committed.^[2] Defense counsel argued Sanchez was entitled to a jury trial prior to the court imposing an upper term sentence. The court found Sanchezs prior performance on probation was unsatisfactory because he violated the conditions of probation and reoffended.^[3] The court found the aggravating factors outweighed the nonexistent mitigating factors and imposed the upper term on count one.

As noted by the California Supreme court, a defendants criminal history can be used by a court in sentencing a defendant without violating the defendants right to a jury trial. (People v. Black (2007) 41 Cal.4th 799, 818-820.) Sanchez concedes that Sandoval held that the amended DSL (section 1170) can be applied without violating the constitutional prohibition on ex post facto laws. It also is not a violation of due process. (Sandoval, supra, 41 Cal.4th at p. 855.) Though Sanchezs offense occurred on February 23, 2007, and the amended DSL became operative on March 30, 2007, the trial court could impose an upper term sentence pursuant to the amendment without its ruling violating the ex post facto clause or Sanchezs constitutional right to due process.

DISPOSITION

The judgment is affirmed.

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^* Before Cornell, Acting P.J., Gomes, J., and Kane, J.

^[1] Unless otherwise specified, all further statutory references are to the Penal Code.

^[2] According to the probation report, Sanchez was placed on three years misdemeanor probation in May 2005 for loitering or prowling on private property ( 647, subd. (h)), trespassing ( 602, subd. (m)), and resisting arrest ( 148, subd. (a)(1)). Sanchez was placed on misdemeanor probation in July 2005 for driving under the influence (Veh. Code,  23152, subd. (a)), failing to submit to a blood alcohol or chemical test (Veh. Code,  23612), failure to provide evidence of financial responsibility (Veh. Code,  16028, subd. (a)), and driving without a license (Veh. Code,  12500, subd. (a)).

^[3] In imposing a consecutive sentence on count two, the court found the objectives of the offenses were predominately independent of each other.