P. v. Vega

Filed 9/5/06 P. v. Vega CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Augustine S. Vega was convicted by jury of second degree robbery (Pen. Code, § 211).^[1] The jury found true the allegations that the crime was committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(A)). It also found that appellant had three prior "strike" convictions within the meaning of the Three Strikes Law (§§ 667, subds. (d)(1)-(e)(1); 1170.12, subds. (b)(1)-(c)(1)), as well three prior serious felony convictions within the meaning of section 667, subdivision (a)(1).

Appellant moved to dismiss two of his prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal. 4th 497. The court denied the motion and imposed a sentence of 39 years in state prison, consisting of 25 years to life for second degree robbery, 4 years for the gang enhancement and two 5-year enhancements for the prior serious felony convictions.^[2] Appellant contends that the trial court abused its discretion by denying his Romero motion and erred in imposing the upper term on the gang enhancement. We affirm.

FACTS

Jesse Nunez was walking home near Indiana and Folsom streets in Los Angeles County, territory of the Little East Side gang. A rival gang, "Kam," claimed an adjacent neighborhood. Nunez saw four Hispanic males, one of whom was spraying graffiti on a wall. The men approached Nunez. He recognized appellant, who he knew as "Weasel," a member of the Little East Side gang. Appellant asked "where are you from?" and Nunez responded "I ain't from nowhere." All four men began saying, "Fuck Kam," "Little East Side," and "This is our hood."

Appellant shoved Nunez and yanked a gold chain from around his neck, then pushed him against a car and continued to scream gang slogans. Another man hit Nunez on the back of his head and all four began patting him down. They took his cell phone from his belt and $50 from his pockets. Nunez repeated that he lived in the neighborhood and one of the men handed back his cell phone.

Sergeant Charles Dery and his partner drove to the scene and saw a group of men who appeared to be in a fistfight. Appellant fled and Dery chased him over a fence and down a driveway. Appellant tripped and fell to the ground and Dery pointed his firearm, telling him to freeze. Appellant looked at Dery, stood up and began running towards the other end of the driveway, towards a six-foot brick wall. On the other side of the wall is a 40-foot drop. Appellant tried to scale the wall, but Dery grabbed him and pulled him down. He smelled the odor of PCP (Phencyclidines) on appellant and called to his partner for help in handcuffing him. Appellant was later taken by ambulance to the hospital where he was treated for PCP intoxication.

Before appellant was apprehended, another deputy approached Nunez, who recounted what had occurred. Nunez was taken to the backyard of the house where he positively identified appellant as the man who attacked him. The deputy had Nunez wait in the patrol car and, after appellant was searched, returned Nunez' gold chain and money.

A gang expert, Officer Patrick Wu, testified that a gang will commit crimes together to instill fear and gain the respect of a rival gang. Little East Side and Kam are rival gangs. In 2001, appellant told officer Wu that he had been a member of Little East Side for 10 years. He has two gang tattoos on the back of his neck: his gang moniker, "Weasel," and "LES" for "Little East Side." Wu testified that a crime committed like the attack on Nunez is typically done to benefit the gang.

DISCUSSION

Romero Motion

Appellant contends that the trial court abused its discretion in refusing to strike two of his prior convictions. A trial court has limited discretion under section 1385 to strike prior convictions in Three Strikes cases. (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530.) In determining whether to exercise that discretion, the court must consider "whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) We review the denial of a section 1385 motion under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 373-374.)

The probation report indicated that appellant's criminal history began when he was a juvenile and included grand theft person, robbery, and possession of a controlled substance. His adult record reflected prior convictions for robbery in 1992 and 1994 and a conviction for possession of a controlled substance in 1996. He violated parole five times and was on parole when he committed the instant offense. The probation report recommended state prison, listing seven aggravating circumstances and no circumstances in mitigation.

At the sentencing hearing, defense counsel characterized the offense as "a chain pull, and pockets were gone through." She argued that no weapon was used, there "was not a lot of violence inflicted on the victim," and appellant was severely intoxicated, which limited his culpability. She added that appellant had completed a drug rehabilitation program while in prison and the prior offenses were remote in time.

The court stated, "I have considered the case. I've looked at the probation report. In terms of the nature and circumstances of the present felony, despite the fact that no weapon was used, it was a violent crime. Mr. Nunez was overwhelmed by a number of people. He was outnumbered. Force and violence [were] used against him. There were gang threats, which is certainly a frightening thing to go through, over and above the actual violence and property being taken. [¶] I agree . . . no weapons were used, and there were no long-lasting injuries. But robbery was the most serious offense."

The court stated, "In terms of the prior felonies and violent convictions, [appellant] has basically led a life of crime. He was young when it started, but he has three prior convictions, three of which are for robbery, one was for grand theft person. The other two were for drugs and are not serious or violent felony convictions. [¶] I note that in the two most recent convictions . . . he has violated parole in both cases. His last conviction was eight years ago. I'm not quite certain when he was released from prison, but . . . he violated parole a number of different times."

The court considered that appellant has a drug addiction, lacks a high school diploma, is employed only sporadically and does not pay child support. It inquired, "How is he going to pay for his cocaine, P.C.P., and so forth unless he robs people?" The court concluded that appellant did not fall outside the spirit of the Three Strikes law and denied the motion.

The trial court's sentencing decision was not irrational or arbitrary. Appellant has demonstrated violent behavior both as a juvenile and adult. He was on parole when he committed the instant offense and is an admitted gang member who committed a robbery to benefit Little East Side. As is evident from the record, the court reviewed appellant's criminal history, his background, character, and prospects. The court did not abuse its discretion in denying his motion.

Gang Enhancement

Appellant contends the trial court deprived him of his Sixth Amendment right to a jury trial by imposing the upper term on his gang enhancement. (§ 186.22, subd. (b)(1)(A).) He claims we must reverse, citing Blakely v. Washington (2004) 542 U.S. 296.

Under section 186.22, subdivision (b)(1), ". . . any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows: [¶] (A) [T]he person shall be punished by an additional term of two, three or four years at the court's discretion."

At the sentencing hearing, the trial court considered that appellant had six prior convictions, had served a prior prison term and had been unable to perform satisfactorily on probation. Based on these factors it selected the upper term of four years on the gang enhancement. (§ 186.22, subd. (b)(1)(A).)

We reject appellant's contention that he was deprived of a jury trial. The California Supreme Court, in People v. Black (2005) 35 Cal.4th 1238, considered the effect of the United States Supreme Court decisions in United States v. Booker (2005) 543 U.S. 220, Blakely v. Washington, supra, 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466, on California's determinate sentencing law. Black 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." (Black, supra, at p. 1244.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Kevin L. Brown, Judge

Superior Court County of Los Angeles

______________________________

Christine C. Shaver, under appointment by the Court of Appeal, for defendant and appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec, Linda C. Johnson, Supervising Deputy Attorneys General, for plaintiff and respondent.

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^[1] All further statutory references are to the Penal Code.

^[2] The People conceded that two of the priors were from the same commitment.