P. v. Wadley

Filed 6/22/07 P. v. Wadley CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed.

Roderick W. Leonard, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent.

Earl Wadley appeals from judgment entered following a jury trial in which he was convicted of petty theft with a prior in violation of Penal Code section 666 and found to have suffered five prior felony convictions and served prison terms within the meaning of Penal Code section 667.5, subdivision (b). He was sentenced to prison for a total of eight years, consisting of the upper term of three years for the petty theft with a prior, plus five 1-year terms for the prior prison term enhancements. He contends the imposition of the upper term sentence violated Blakely v. Washington (2004) 542 U.S. 296 and his federal constitutional rights to a jury trial and due process. For reasons stated in the opinion, we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On March 14, 2006, Hank Garcia was working as a loss prevention associate at a Wal-Mart store in Baldwin Park when he saw appellant and a female companion walk from the womens department to the mens department with a shopping cart full of merchandise. There was a large black purse flat on top of the merchandise. Thereafter, Mr. Garcia saw appellant tear off the price tag on a backpack and put the Wal-Mart merchandise from the shopping cart into the backpack. When appellant filled up the backpack, he put the remainder of the Wal-Mart merchandise from the shopping cart into the black purse. Appellant handed the black purse to his female companion and they both walked towards the stores exit, appellant carrying the backpack and his companion carrying the purse. They passed cash registers but did not pay for any of the merchandise. When they exited the store, the stores alarm, triggered by tags on some of the merchandise, went off. The store greeter unsuccessfully tried to get the couples attention. Mr. Garcia and his partner Greg Housden followed the couple and confronted them after they had exited the store. When Mr. Garcia and Mr. Housden identified themselves, appellant and his companion fled. Mr. Garcia and Mr. Housden chased them and Mr. Garcia picked up the black purse and the backpack when appellant and his companion dropped them. When Mr. Garcia caught up with appellants companion and handcuffed her, appellant came towards them, apparently trying to assist his companion.

A California Department of Corrections 969(b) packet was received into evidence indicating appellant had been convicted on three occasions of commercial burglary, in case number TA012643 on July 9, 1991; in case number TA027280 in January 1994; and in case number TA060004 in May 2001. Additionally, it indicated appellant had been convicted on two occasions of receiving stolen property, in case number TA046839 on June 24, 1997 and in case number TA054008 on September 23, 1999. Additionally, the packet indicated appellant had been sent to prison on each conviction.

Appellant testified in his own defense that he had gone to the Wal-Mart store with his wife to try to steal items, but did not pick up a backpack. When he was exiting the store with merchandise, he was stopped and asked to leave the items. He left the purse and backpack in the store. He did not remember his prior convictions.

DISCUSSION

At sentencing the trial court summarized appellants criminal history, noting he had a total of 16 prior convictions (including the five prior convictions found under Penal Code section 667.5, subdivision (b)) and seven parole violations. Based on the number of convictions and probation violations beginning in 1989,[1]the court concluded appellant was not going to change his pattern of behavior. The court stated using the uncharged convictions [those not used to impose one-year enhancements under Penal Code section 667.5] as well as the facts of our case that indicate premeditation, and the courts going to select the upper term of three years; and as to the alleged prior convictions, the five prior convictions, will all be imposed one year per conviction. They will all run consecutive based on the six violations of parole.

Appellant contends imposition of the upper term sentence violated Blakely v. Washington and his federal constitutional rights to a jury trial and due process.[2]In Cunningham v. California, supra, 549 U.S. ___, ___ [127 S.Ct. 856], the United States Supreme Court concluded Californias determinate sentencing law, authorizing a judge to find the facts permitting an upper term sentence and to permit the finding based on a preponderance of the evidence, violated the rule of Apprendi v. New Jersey (2000) 530 U.S. 466, 490 and the Sixth Amendment. It also, however, reiterated that the fact of a prior conviction did not have to be submitted to a jury. (See Cunningham v. California, supra, 549 U.S. ___; Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247.) The trial courts reliance on appellants recidivism permitted the upper term sentence and use of that factor did not violate his right to a trial by jury or proof of the fact beyond a reasonable doubt. The court also noted that appellant admitted in testimony before the court that he entered the Wal-Mart store with the intention of stealing merchandise, i.e., that the crime was premeditated. Consideration of this admission as a further justification for the upper term is proper. (See Blakely v. Washington, supra, 542 U.S. at p. 303.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

SUZUKAWA, J.

We concur:

EPSTEIN, P. J.

MANELLA, J.

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[1] The probation report lists seventeen prior arrests, eight of which resulted in felony convictions and three of which resulted in misdemeanor convictions. The report indicates that in 1990, appellant was convicted of vehicle tampering, a misdemeanor (Veh. Code,  10852) and placed on three years probation and sentenced to 14 days in jail; taking a vehicle without the owners consent, a misdemeanor (Veh. Code,  10851) and sentenced to 45 days in jail; and grand theft of a vehicle, a felony (Pen. Code,  487) and placed on three years probation and sentenced to one year in jail. In 1991, he was convicted of having a weapon in jail/prison (Pen. Code,  4574, subd. (a)) and placed on probation for three years and sentenced to jail for one year. Also in 1991, he was convicted of second degree burglary (Pen. Code,  459) and placed on probation for three years and ordered to serve one year in jail. In 1992, probation was revoked and he was sentenced to prison for two years. In 1993, he violated parole. In 1994, he was convicted of second degree burglary (Pen. Code,  459) and sentenced to prison for 16 months. In 1995 and 1996, he violated parole. In 1997, he was convicted of receiving stolen property (Pen. Code,  496, subd. (a)) and possession of a narcotic controlled substance (Health & Saf. Code,  11350, subd. (a)) and sentenced to prison for 32 months. In 1999, he violated parole. In 1999, he was convicted of receiving stolen property (Pen. Code,  496, subd. (a) and sentenced to two years in prison. In that same year he was found in violation of parole. In 2000, he violated parole. In 2001, he was convicted of second degree burglary (Pen. Code,  459) and sentenced to two years in prison. In that year he also violated parole. In 2006, he was convicted of inflicting corporal injury (Pen. Code,  273.5, subd. (a)) and placed on summary probation for three years.

[2] During the pendency of the appeal, the United States Supreme Court issued its opinion in Cunningham v. California (2007) 549 U.S. ____, [127 S.Ct. 856]. Respondent addressed the sentencing issue in light of Cunningham in its respondents brief. Appellant addressed the impact of Cunningham in his reply brief.