P. v. Swift

Filed 10/3/06 P. v. Swift CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant Shane Swift was convicted in a jury trial of receiving stolen property in violation of Penal Code section 496, subdivision (a).[1] He appeals from the judgment of conviction, contending that (1) there was insufficient evidence to support his conviction; (2) the trial court erred in failing to instruct the jury on the definition of possession as set forth in CALJIC No. 1.24; (3) the trial court abused its discretion in ordering restitution in the amount of $665; and (4) his sentence is unconstitutional under Blakely v. Washington (2004) 542 U.S. 296. We agree that the trial court abused its discretion in ordering defendant to pay $665 in restitution and order the abstract of judgment amended to reflect restitution in amount of $370. We reject defendant’s remaining contentions and affirm in all other regards.

I. Procedural Background

Defendant was arrested on September 27, 2005, in connection with the theft of a USA Today newspaper vending machine in Crescent City (case no. CRF 05-9805). At the time of his arrest, defendant was on probation following a guilty plea on charges of second degree burglary and tampering with a gambling device arising out of defendant’s attempt to insert a “phony” $100 into a slot machine at the Elk Valley Casino (case no. CRF 04-10143). Following defendant’s September 27, 2005 arrest, his probation officer filed a petition for modification of his probation, seeking the revocation of probation and imposition of a previously suspended sentence.

By amended information filed on November 14, 2005, defendant was charged in case no. CRF 05-9805 with one felony count of grant theft in violation of section 487, subdivision (a), and one felony count of receiving stolen property in violation of section 496, subdivision (a).[2] A jury trial commenced on November 14, 2005, before the Honorable Robert Weir and concluded the following day. The jury found defendant guilty of receiving stolen property, and the trial court declared a mistrial as to the grand theft charge after the jury was unable to reach a unanimous verdict. The court also found defendant in violation of the terms of his probation in case no. CRF 04-10143.

On December 8, 2005, defendant was sentenced in case no. CRF 05-9805 to the upper term of three years and ordered to pay restitution, including $665 to the victim for the damaged vending machine pursuant to section 1202.4, subdivision (f). In case no. CRF 04-10143, defendant’s probation was revoked and he was sentenced to a concurrent two-year prison term on the felony burglary charge and a concurrent 180-day term in county jail on the misdemeanor charge of tampering with a gambling device.

Defendant filed timely notices of appeal in both cases.[3]

II. Evidence Presented At Trial In Case No. 05-9805

A. The Prosecution’s Case

On September 25, 2005, Sherri Belt and her boyfriend, Edward Spott, were living at 655 Reddy Avenue (655 Reddy) in Crescent City, a residence owned by defendant’s father who was incarcerated at the time of defendant’s arrest. Defendant did not live there, although he stayed there from time to time.

Around midnight that night, Belt and Spott were awakened from their sleep by noise in the bedroom closet. Belt picked up a bat to protect herself and almost swung at the source of the noise, but stopped when she realized it was defendant, who had climbed into the house through a window in the closet. She told defendant to knock on the door next time rather than breaking into the house. Defendant asked Belt if she and Spott wanted some money, which they declined, and defendant then left through the front door, leaving it wide open.

Immediately after defendant left, Belt and Spott heard “some banging” outside, which Belt described as “metal hitting metal, trying to get into something” and lasting for 20 to 25 minutes. Spott described it as “hitting a piece of metal with another metal” and sawing like the sound of a hacksaw on metal. They did not know what the noise was so they went back to bed, later hearing defendant come in around 2:00 a.m. and go to sleep.

In the morning of September 26, 2005, Spott was looking for a roommate named Jason Corder, who had left the house the prior evening following an argument between him and defendant. Spott had a “funny feeling” there was something wrong, so he went into the shed where he saw a newsstand that was tipped over with its door broken off and some newspapers on the floor. Spott had been in the shed the previous day, and there was nothing in it at that time. Belt testified that she saw a hacksaw near the newsstand. Belt had been in the shed about two days earlier and had not seen a newsstand there.

Spott asked Belt to call the police, which she did because she did not want anything to do with stolen property. Crescent City Police Sergeant Thomas Burke responded to the call and went to the residence at 655 Reddy to take a report. The following day, Spott contacted Burke to inform him that defendant had returned to the residence; Burke went back to the house, where he found defendant asleep on a couch.

Burke immediately arrested defendant for grand theft of newspaper vending machines and began questioning him. Initially, defendant denied any knowledge of the machines, but as they were driving to the jail, defendant acknowledged that he might know something about the theft. According to Burke, defendant explained that he was getting a ride in a van with two acquaintances--identified as Jeremy Jackson and Charity, his wife or girlfriend--and their small children when the acquaintances stole two vending machines.[4] Defendant denied that it was his van or his idea, and claimed that he just happened to be there when the theft occurred. Defendant told Burke that Jeremy and Charity dropped him off at 655 Reddy, where he went into the house while Jeremy put one of the machines into the shed.

Burke later contacted defendant at the jail regarding a backpack given to Burke by Spott which contained, among other items, a pair of pliers and a USA Today newspaper dated September 16, 2005. Defendant denied owning the backpack, although Spott testified that he recognized the backpack as belonging to defendant.

Mike Vierow, a newspaper distributor for parts of Humboldt and Del Norte Counties in California and Curry County in Oregon, testified that on the morning of September 26, 2005, he learned that several vending machines he and his wife leased from USA Today were missing from their route, including one located in front of Glen’s Bakery in Crescent City which he identified as the one recovered from the shed at 655 Reddy. Vierow testified that he stopped servicing the machine in front of Glen’s Bakery around September 16, 2005, because the bakery closed around that time.

Vierow contacted USA Today to ascertain the value of the machine and was quoted $585 for a new machine. And, according to Vierow, although the machine was recovered in damaged condition, it could be repaired for an estimated $300.

Vierow also testified that the machine holds $70 in coins, “give or take,” and that prior to the machine’s disappearance, he had not emptied the coins for approximately one month. While Vierow did not know the actual amount of coins in the newsstand at the time of its disappearance, he estimated it to be between $50 and $70. He did not know how many papers were in the stand when it was removed from its location, and when asked about the value of a three-day-old newspaper, he responded “virtually zero.”

B. Defendant’s Case

Defendant testified on his own behalf, where he provided the following account. Late in the evening of September 25, 2005, he went to the Value Inn where Jeremy, Charity and their four children were staying and asked for a ride to 655 Reddy, a distance of about one and one-half miles. They agreed, but instead of going directly to 655 Reddy, they drove first to the Elk Valley Casino, where defendant informed them he was not allowed on the casino premises in light of his conviction for tampering with the slot machine. Assuring him “they would make it quick,” Jeremy and Charity went into the casino to look for somebody, and defendant remained in the van where he fell asleep. He later awoke, apparently now outside Glen’s Bakery, to Charity handing him a cup of coffee and Jeremy rearranging the contents of the van and pushing in a newspaper vending machine.

From there, they drove to 655 Reddy, where defendant got out of the van and went inside the house through the closet window, having unsuccessfully knocked on the door. Meanwhile, Jeremy and Charity took the vending machine out of the van and walked around looking for tools to break it open. While defendant was inside preparing food, he heard banging, which he assumed was Jeremy and Charity attempting to break open the machine, although he claimed he never actually saw them. According to defendant, after the banging had been going on for a little while, he told Jeremy and Charity to remove the machine from the property but he did not call the police because he did not have a phone.[5]

Defendant admitted asking Belt and Spott if they wanted any money. As he explained it, while Jeremy and Charity were “tearing the machine apart,” they wanted to know if they were disturbing the house’s residents and whether they would call the police. They told defendant to ask if the residents wanted money, presumably, according to defendant, to keep them quiet about the stolen property on the premises.

Defendant also admitted that, after his arrest, he initially told Burke he had no information about the stolen vending machine, but that he later changed his story, acknowledging that Jeremy and Charity had stolen it while he was in the van. According to defendant, he made the initial false statement because he did not want to be labeled a “rat” or a “snitch” when he got to the jail, but he later started talking about the incident because he did not want to serve time for something he did not do. Defendant also admitted falsely denying to Burke that the backpack was his because it contained syringes, and defendant had used methamphetamine a week before his arrest.

When questioned about the USA Today newspaper and pliers found in his backpack, defendant presented a rather convoluted tale. He claimed the newspaper came from Jeremy’s hotel room and that he had grabbed it from a stack on the floor to wrap up watches, when Jeremy and Charity asked him to leave because they had someone coming over. This supposedly occurred when he had been at the hotel earlier in the same day as the vending machine theft.

Defendant claimed he had pliers because he rides a bicycle, but on the evening of the theft, he had walked to Jeremy’s hotel room from his mother’s house, where he had been for a visit, and asked for a ride to his father’s house because his bicycle had been stolen three or four days earlier. He testified, however, that when he had visited the hotel room earlier in the day, he arrived there by a bicycle he claimed to have borrowed from Spott. He did not use the same bicycle to return to 655 Reddy later that night because he had already returned it to Spott.

III. Discussion

A. The Jury Verdict Was Supported By Substantial Evidence

“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11, citing People v. Johnson (1980) 26 Cal.3d 557, 578; see also People v. Lenart (2004) 32 Cal.4th 1107, 1125; People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Parra (1999) 70 Cal.App.4th 222, 225.) Under this standard, the court does not “ ‘ “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Citation.]” (People v. Hatch (2000) 22 Cal.4th 260, 272, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319; see also People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

Given this court’s limited role on appeal, defendant bears an enormous burden in claiming there was insufficient evidence to sustain his conviction, as we are bound to give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa, supra, 6 Cal.4th 1199, 1206.) “ ‘ “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citations.]” ‘ [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 361.) Under this deferential standard, we reject defendant’s contention that his conviction for possession of stolen property was unsupported by substantial evidence.

Defendant first argues that there was no evidence that he exercised dominion and control over the stolen vending machine. We disagree. As the Court of Appeal held in People v. Land (1994) 30 Cal.App.4th 220, 223-224, “Possession of the stolen property may be actual or constructive and need not be exclusive. Physical possession is also not a requirement. It is sufficient if the defendant acquires a measure of control or dominion over the stolen property.” (Accord, People v. Zyduck (1969) 270 Cal.App.2d 334, 336 [“Dominion and control are essentials of possession, and they cannot be inferred from mere presence or access.”].) In viewing the evidence in the light most favorable to the judgment, as we must, we conclude that a rational trier of fact could have found that defendant exercised dominion and control.

Belt and Spott both testified that immediately after defendant walked out of the house, the banging began, from which a jury could reasonably have concluded that he was responsible for the noise. Defendant himself admitted offering Belt and Spott money, suggesting that he was possession of the proceeds of the theft--the coins taken out of the vending machine. The newspaper found in defendant’s backpack was dated September 16, 2005, which was the last day Vierow serviced the machine originally located outside Glen’s Bakery and subsequently found in the shed at 655 Reddy. Additionally, and while it is not for the reviewing court to assess the credibility of witnesses (People v. Lewis, supra, 26 Cal.4th at p. 361), the jury could easily have found defendant’s credibility lacking in light of the multiple lies he admitted telling Burke, the curious stories he told regarding his possession of the pliers and USA Today found in his backpack, and the numerous discrepancies in his testimony. The totality of this evidence readily supports a jury conclusion that defendant exercised sufficient dominion and control over the machine that he was in possession of stolen property.

Defendant disputes this conclusion for four reasons, which we dispose of in turn. He argues, “First, no one ever saw [defendant] in possession of the machine. No one saw him touch it or hit it or move it or take a hacksaw or any other tool to it. The prosecution did not present any evidence that [he] was ever in the shed. He was not in possession of any money from the machine’s coin box. His fingerprints were not found on the machine.” These factors do not necessitate a finding that there was insufficient evidence because they do not disprove that he was in possession of the vending machine, and, as noted above, there was sufficient other evidence from which the jury could have concluded otherwise.

Defendant also argues that “other than [defendant’s] testimony, which the jury obviously rejected, there is no evidence as to how the vending machine came to be in the shed.” He then speculates that the absence of such evidence suggests “that someone else, exercising dominion and control, brought it to the property.” The mere fact that someone else may have brought the machine to the property, and was therefore in possession of it, does not necessarily negate a finding that defendant also exercised dominion and control over it. Moreover, it would have been reasonable for the jury to have rejected defendant’s testimony that he did not bring the machine onto the property in light of his credibility issues.

Third, defendant submits that although he “may have asked Belt and Spott if they wanted any money, this does not mean that [he] had control over the machine. Someone else may very well have been in control of the machine. And, there is no evidence [he] ever had any money from the machine to give Belt and Spott.” Again, a jury could reasonably have inferred from defendant’s offer of money and the totality of the circumstances that defendant did indeed have possession of the newsstand.

Finally, defendant notes that the newspaper found in his backpack was dated September 16, 2005, 10 days before the theft occurred, and submits that if he “had any control over the stolen machine, the papers would have been dated September 23 or later.” This theory is undermined by Vierow’s testimony that he last serviced the newsstand stolen from outside Glen’s Bakery and recovered from the shed at 655 Reddy on approximately September 16, 2005. Indeed, that the paper in defendant’s backpack was dated September 16, 2005 actually supports the jury verdict.

In addition to concluding that there was substantial evidence that defendant exercised dominion and control over the vending machine, we also reject defendant’s substantial evidence claim because evidence of possession was not even required for a conviction. As the People point out, defendant was prosecuted for aiding and abetting the receipt of stolen property, as well as for being a direct perpetrator. Aiding and abetting did not require defendant’s possession of the stolen vending machine, but rather only that he knew of the perpetrator’s criminal purpose and acted with the intent or purpose of committing, encouraging, or facilitating the offense. (People v. Beeman (1984) 35 Cal.3d 547, 560; People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 740.) There was substantial evidence of defendant’s intent to assist Jeremy and Charity’s unlawful possession of the newsstand.

Defendant’s own testimony confirmed that he was with them when they stole the machine; that he knew what they were doing; and that he was with them when they drove the machine to 655 Reddy. More significantly, at Jeremy and Charity’s request he asked Belt and Spott if they wanted money, in his own words, “to keep these guys from saying anything” “about them bringing the stolen property up to the premises.” Additionally, defendant admitted that he knew Jeremy and Charity were in the shed breaking into the machine, yet did not contact the police to report the theft. Finally, there are the issues affecting defendant’s credibility as previously detailed. This evidence certainly constituted substantial evidence to support a jury conclusion that defendant acted with the intent of facilitating Jeremy and Charity’s possession of the stolen newsstand.

Ultimately, defendant submits that the prosecution’s evidence raised “only a suspicion” that defendant may have had possession of the vending machine. In fact, there was abundant evidence to support a jury conclusion that defendant either aided and abetted Jeremy and Charity in their receipt of stolen property or was a direct perpetrator himself.

B. No Error Resulted From The Lack Of Instruction Defining The Term “Possession”

Defendant contends that the trial court had an obligation to instruct the jury sua sponte with CALJIC No. 1.24, which defines the terms “actual” and “constructive” possession.[6] Alternatively, he argues that if the trial court was not obligated to instruct the jury with CALJIC No. 1.24, he received ineffective assistance of counsel because his trial attorney did not request that the trial court give the jury this instruction. Defendant claims that the instruction was necessary because without it, “the jury could readily have determined that [his] mere presence near the shed or in close proximity to the machine was sufficient to establish possession . . . .” Again, we disagree.

1. Sua Sponte Duty

As to the court’s sua sponte duty to instruct, if the parties fail to request instructions that are necessary for the jury’s understanding of the case, the trial court has a sua sponte obligation to give such instructions. (People v. Wader (1993) 5 Cal.4th 610, 644-645.)

Here, the trial court instructed the jury on receiving stolen property as set forth in CALJIC No. 14.65: “The defendant is accused in Count II of having committed the crime of receiving stolen property, a violation of Section 496, subdivision (a) of the Penal Code.

Every person who receives any property which has been stolen or which has been obtained by theft, knowing the property to have been stolen, or who conceals or withholds or aids in concealing or withholding property from the owner, knowing the property to have been stolen, is guilty of the crime of receiving stolen property in violation of Penal Code Section 496, subdivision (a).

In order to prove this crime, each of the following elements must be proved: One, a person concealed or withheld or aided in concealing or withholding property from the owner which had been stolen or obtained by theft. And, two, that person actually knew the property was stolen or obtained by theft at the time he received, withheld, concealed or aided in concealing or withholding from the owner of the property.”

CALJIC No. 1.24 was not necessary to the jury’s understanding of the case. First, CALJIC No. 14.65 does not use the word “possession,” and a definition of the term may have served to confuse the jury. (See People v. Coryell (2003) 110 Cal.App.4th 1299, 1306 [rejecting defendant’s claim that the trial court had a sua sponte duty to instruct with CALJIC No. 1.24 even though the trial court instructed on CALJIC No. 9.46, which used the word “possession”].) Moreover, as noted above, defendant’s guilt as an aider and abettor did not require possession. Finally, CALJIC No. 1.24 typically applies to contraband cases, where “the term ‘possession,’ for purposes of establishing criminal culpability for possessing an item, ‘has a specialized meaning’ in that context.” (People v. Coryell, supra, 110 Cal.App.4th at p. 1306.)

Assuming arguendo that the trial court had a sua sponte duty to instruct on CALJIC No. 1.24, which it did not, we also reject defendant’s theory that he was prejudiced by the absence of a CALJIC 1.24 instruction since “there is no evidence that [defendant] ever had actual possession of the vending machine” and “the jury could readily have determined that [defendant’s] mere presence near the shed or in close proximity to the machine was sufficient to establish possession . . . .” The jury was instructed, per CALJIC No. 3.01, that “[m]ere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting.

Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.” And as the People point out, defense counsel repeatedly emphasized in closing argument that mere presence was not enough, a point which the prosecution conceded. Thus, there is no basis for speculating that the jury found defendant’s mere presence sufficient to establish possession.

Further, defendant was not prejudiced by the absence of an instruction defining the term possession because there was ample evidence that he was in actual possession of the stolen property. As noted above, and as the People sum up, “[Defendant’s] own testimony conceded he was ‘with’ the stolen property, and the testimony of Spott and Belt circumstantially showed actual possession. [Defendant’s] surreptitious entry, the banging and sawing occurring immediately upon [defendant’s] leaving the residence, and the placement of the vending machine in the shed all demonstrated [defendant’s] actual possession. Also probative was [defendant’s] asking Spott and Belt if they wanted money, and [defendant’s] untruthfulness to the police and on the witness stand.”

2. Ineffective Assistance of Counsel

To establish ineffective assistance of counsel, defendant must prove that counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms, and there is a “ ‘reasonable probability’ “ that he would have obtained a more favorable result had counsel acted competently. (People v. Dennis (1998) 17 Cal.4th 468, 540.) Defendant cannot establish that a reasonable attorney would have requested instruction on CALJIC No. 1.24 for the same reasons the trial court did not have a sua sponte duty to give the instruction (namely, the word “possession” is not used in CALJIC No. 14.65, the instruction is typically given in contraband cases, and the aiding and abetting charge did not require possession).

And, even if a reasonable attorney would have requested the instruction, there is no reasonable probability of a more favorable result because, again, aiding and abetting did not require possession and there was substantial evidence suggesting defendant had actual possession of the vending machine.

C. The Trial Court Abused Its Discretion In Ordering Defendant To Pay $665 To The Victim

Section 1202.4, subdivision (f) provides the statutory basis for victim restitution: “in every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.” Here, the trial court awarded the victim $665. We review the restitution order for abuse of discretion (People v. Thygesen (1999) 69 Cal.App.4th 988, 992), and conclude that the trial court did in fact abuse its discretion in setting the restitution amount.

The prosecution presented testimony from Vierow as to the value of the machine. He testified that a new vending machine cost $585 but that the machine recovered from the shed was repairable at a cost of $300. He was unable to testify as to the exact amount of coins in the machine at the time of the theft, but he estimated that the coin box would have contained between $50 and $70.

Despite this testimony, the trial court determined that the machine was a total loss: “Maybe it could have been fixed but in my estimation it would have cost as much to fix it as it was worth. And anyway, when you fix something that’s been wrecked it’s never quite the same. So--I’m satisfied that whatever the machine value was, it was a total loss.” The court continued: “I do recall that there was testimony, if I recall correctly, the testimony was that [Vierow] was cleaning out the cash boxes on these machines periodically but on the time schedule he was doing it, if I recall, he anticipated there might be $70 or $80 in the cash box.” The court then ordered restitution in the amount of $665, consisting of $585 for the machine and $80 for the coinage.

There was no evidence to support the trial court’s conclusion that the machine was a total loss, a conclusion that was contrary to Vierow’s testimony that the machine could be repaired for $300. Similarly, the evidence established that the machine would have contained a maximum of $70 in coinage, not $80 as ordered. We therefore conclude that the restitution amount due the victim must be reduced to $370, consisting of $300 for damage to the machine and $70 for the lost coinage.

D. Defendant’s Blakely Argument Is Without Merit

Finally, defendant challenges the trial court’s imposition of a three-year upper term sentence, arguing that the sentence is unconstitutional as recognized by Blakely v. Washington (2004) 542 U.S. 296 (Blakely), where the United States Supreme Court held that a Washington State court denied a criminal defendant his constitutional rights to a jury trial by increasing the defendant’s sentence for second-degree kidnapping from the “standard range” of 49 to 53 months to 90 months based on the trial court’s finding that the defendant acted with “ ‘deliberate cruelty.‘ “ (Blakely, supra, 542 U.S. at pp. 303-304.) The Blakely court found that the state court violated the rule previously announced in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) that, “ ‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ “ (Blakely, supra, 542 U.S. at p. 301.) In reaching this conclusion, the court clarified that, for Apprendi purposes, the “statutory maximum” is “not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose, without any additional findings.” (Id. at pp. 303-304.)

Defendant contends his sentence must be reversed pursuant to Blakely, supra, 542 U.S. 296, because the trial court committed constitutional error by imposing an upper-term sentence on count two based on aggravating factors that were not supported by jury findings.

As defendant concedes, the California Supreme Court expressly rejected his argument in People v. Black (2005) 35 Cal.4th 1238, in which the court held that “the judicial fact finding 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 [, supra, 530 U.S. 466], Blakely [, supra, 542 U.S. 296], and [United States v.] Booker [(2005) 543 U.S. 220].” (Black, supra, 35 Cal.4th at p. 1254.) We are obligated to follow the law as determined by Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Defendant acknowledges that he is presenting this Blakely argument to preserve it for federal court review. [7] We thus need not further address the issue, and we reject defendant’s claim of sentencing error accordingly.

IV. Disposition

The abstract of judgment shall be amended to reflect restitution pursuant to section 1202.4, subdivision (f) in the amount of $370. In all other regards, the judgment is affirmed.

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Haerle, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

[1] All subsequent references are to the Penal Code unless otherwise noted.

[2] The original information was filed on October 12, 2005, charging defendant with felony grand theft in violation of section 487, subdivision (a) and misdemeanor public intoxication in violation of section 647, subdivision (f).

[3] We note that while defendant filed a notice of appeal in case no. CRF 04-10143, he presents no arguments on appeal regarding his conviction or sentence in that case.

[4] Defendant testified at trial that Jeremy and Charity only put one machine in the van.

[5] The evidence portrayed a house in fairly dilapidated condition. There was no electricity and no telephone; defendant, Belt, and Spott did not have keys to the doors because the deadbolts had been changed after the doors were kicked in; and the yard was littered with old, abandoned cars and trash.

[6] CALJIC No. 1.24 states: “There are two kinds of possession: actual possession and constructive possession.

Actual possession requires that a person knowingly exercise direct physical control over a thing.

Constructive possession does not require actual possession but does require that a person knowingly exercise control over or the right to control a thing, either directly or through another person or persons.

One person may have possession alone, or two or more persons together may share actual or constructive possession.”

[7] We note that a petition for certiorari was filed in Black, supra, 35 Cal.4th 1238, on September 28, 2005, in the United States Supreme Court and is pending sub nomine Black v. California, No. 05-6793. Additionally, the United States Supreme Court has granted certiorari in People v. Cunningham (Apr. 18, 2005, A103501) [nonpub. opn.], certiorari granted sub nomine Cunningham v. California, Feb. 21, 2006, No. 05-6551, __ U.S. __, on the issue of Blakely‘s applicability to our determinate sentencing law.