P. v. Long

Filed 7/18/07 P. v. Long CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

----

On January 31, 2006, someone broke into Karen Aviss home in Chico and stole two cell phones. An eyewitness to the break-in reported seeing two men and the license number of the get-away car, which was registered to defendant Joshua Eugene Long.

On the same day, someone broke into Jennifer ORileys home in Chico and stole a .38 caliber revolver and $100. An eyewitness saw defendant in ORileys backyard with a crowbar. The eyewitness recognized defendant as someone who had previously worked at the home.

On February 2, 2006, someone broke into Frank McNanies home while he was in his garage. McNanie saw someone inside his home. He chased the intruders who used defendants car to flee.

On the same day, defendant recounted to his parole officer that he and John Matthew Justice had committed several burglaries. Defendant revealed to the probation officer that he turned himself in because a friend told him that officers were searching his home.

A search of Justices home revealed property stolen during the burglaries. Justice admitted that he and defendant had committed several burglaries.^[1]

A complaint filed on February 6, 2006, case No. CM024578, charged defendant and Justice with two counts of first degree burglary (the Avis home, count 2; the McNanie home, count 3) Justice alone was charged with an additional count of first degree burglary (the Foreman home, count 1). The complaint alleged that defendant has served a prior prison term.

A complaint filed on April 14, 2006, case No. CM024908, charged defendant with another count of first degree burglary (the ORiley home) and alleged the same prior prison term enhancement.

Defendant entered a negotiated no contest plea to three counts of first degree burglary (the homes of Avis, McNanie, ORiley) in exchange for dismissal of the prior prison term allegations and the prosecutors agreement not to file an allegation that a victim was present during a burglary or file additional charges of burglary that may have occurred between January 1 and February 2, 2006.

The trial court sentenced defendant to state prison for an aggregate term of eight years and eight months (the upper term of six years for count 2 in case No. CM024578 and consecutive terms of one year and four months (one-third the middle term) for count 3 in case No. CM024578 and count 1 in case No. CM024908. Defendant appeals.

Defendants appellate counsel initially filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. Thereafter, appellate counsel filed a supplemental brief, claiming error in sentencing. (Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (hereafter Cunningham).) According to defendant, the upper term for count 2 must be vacated and the case remanded for resentencing. We disagree.

At sentencing, the trial court stated that it had read and considered the probation report, which reflects defendants criminal history, including previous burglary and drug offenses as a juvenile and adult convictions for petty theft and assault with a deadly weapon or by means of force. Defendant was sentenced to prison for the latter crime. He had probation and parole violations. He also had been committed to the California Youth Authority.

In imposing the upper term, the trial court found by a preponderance of the evidence the following facts in aggravation: The crime was premeditated. [] The crimes involved great monetary value; the defendants priors are numerous and he has served a prior prison term. He was on parole at the time of the crime. His prior performance on both probation and parole ha[s] been unsatisfactory. In mitigation, the court found that defendant was youthful (21 years of age), turned himself in, cooperated with the investigation of the crimes, confessed, and returned the firearm stolen from one of the homes. On balance, the court found the factors in aggravation outweighed those in mitigation.

Defense counsel objected to any use of any factors not found true by a jury or admitted by the defendant in the probation report or plea, pursuant to reasons in -- I believe thats United States Supreme Court case of Blakely. (Blakely v. Washington (2004) 542 U.S. 296, 303-305 [159 L.Ed.2d 403, 413-414] (hereafter Blakely).)

In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi), the Supreme Court held that [o]ther 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. (Id. at p. 490 [147 L.Ed.2d at p. 455].) The statutory maximum is the maximum sentence that a court could impose based solely on facts found by a jury or admitted by the defendant. A defendant is entitled to a jury trial and proof beyond a reasonable doubt on the facts other than a prior conviction used to enhance the sentence. (Blakely, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].)

In Cunningham, the Supreme Court held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238 on this point.)

Here, in imposing the upper term, the trial court relied on defendants prior juvenile adjudications and adult convictions, which were numerous, as well as the facts that defendant was on parole for a prior conviction when he committed the current offenses and had served a prison term for a prior conviction. The trial courts reliance upon these factors did not violate Apprendi, Blakely, and Cunningham because the upper term was based on defendants prior convictions. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].)

A single factor in aggravation will support imposition of an upper term. (People v. Cruz (1995) 38 Cal.App.4th 427, 433; see also People v. Osband (1996) 13 Cal.4th 622, 728.) Here, there were three valid aggravating factors relating to defendants prior adjudications and adult convictions. Notwithstanding the trial courts findings of the mitigating factors of defendants youth and cooperation, we are satisfied beyond a reasonable doubt that the trial court would have imposed the upper term based on defendants prior adjudications and convictions. Thus, the trial courts use of other aggravating factors not found true by a jury (the crime was premeditated and involved great monetary value, and his performance on probation and parole was unsatisfactory) was harmless.

DISPOSITION

The judgment is affirmed.

SCOTLAND , P.J.

We concur:

NICHOLSON , J.

RAYE , J.

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^[1] Codefendant Justice is not a party to this appeal.