P. v. Guzman

Filed 8/30/06 P. v. Guzman 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 San Bernardino County. Keith D. Davis and Gus Skropos, Judges. Affirmed.

Jeffrey A. Needelman, 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, Barry Carlton, Supervising Deputy Attorney General, and Sharon L. Rhodes and Kristen K. Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Roman Guzman was charged with unlawfully taking a motor vehicle in violation of Vehicle Code section 10851, subdivision (a) (count 1), and receiving stolen property in violation of Penal Code section 496d, subdivision (a) (count 2). Defendant pled guilty to vehicle theft. In exchange, the court dismissed count 2. The court sentenced defendant to six months in jail and three years of probation. Subsequently, the trial court revoked defendant's probation and sentenced defendant to the upper term of 3 years. On appeal, defendant contends that the trial court erred (1) in failing to reinstate his probation; and (2) in sentencing defendant to the upper term. Defendant also contends that his sentence to the upper term violated Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely). For the reasons set forth below, we shall affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND^[1]

On February 20, 2001, defendant was convicted in Kings County, California, for taking a vehicle without the owner's consent. The court placed defendant on probation for three years with the condition he serve 60 days in jail.

While on probation, on March 23, 2003, the police stopped defendant for the instant offense – driving a vehicle with one of its headlights out and an expired registration. The vehicle had been reported stolen and did not have a key in the ignition. Defendant told the officers that he had borrowed the car from his friend; his friend claimed that the car was not stolen.

Defendant was charged with unlawfully taking a motor vehicle (count 1), and receiving stolen property (count 2). On April 7, 2003, defendant entered a guilty plea to count 1, in exchange for a dismissal of count 2. Defendant was released on his own recognizance until sentencing.

Thereafter, the probation department was unable to contact defendant. The probation department reported that defendant did not appear for the preparation of the presentence investigation or report. On May 12, 2003, the trial court held the first sentencing hearing. Defendant did not appear; a bench warrant issued. On August 7, 2004, police arrested defendant in Fresno and transported him back to San Bernardino.

Defendant stated that he â€