P. v. Alvarado

Filed 7/31/07 P. v. Alvarado CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Burt Pines, Judge. Affirmed.

Marcia R. Clark. 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, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Joseph P. Lee, Deputy Attorney General, for Plaintiff and Respondent.

_____________________________________

Hector Alvarado appeals from the judgment entered following a jury trial in which he was convicted of carjacking, robbery, and evading an officer while driving recklessly. He was sentenced to the upper term for carjacking and contends that the sentence violated Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We affirm.

BACKGROUND

Cynthia Loya testified that about 7:25 p.m. on March 29, 2006, she and a passenger were at the intersection of Fillmore and Woodman in Loyas Honda Accord when defendant opened the drivers side door. He pointed a gun at Loya and told her to leave her purse and phone and for the two to get out of the car. Lola and her passenger complied, and defendant then got into the car and drove away. Loya reported the incident to the police.

About 7:45 p.m., Los Angeles Police Officer Martin Contreras heard a radio report regarding the crime. At 12:30 a.m. the next morning, Contreras saw Loyas Honda about two-and-a-half miles from where it had been taken. Contreras gave chase and requested that he be joined by a patrol car that had a light bar on top. Defendant attempted to evade the officers, traveling at speeds of up to 100 miles per hour, running red lights, and causing cars to move over to avoid being hit. At one point, defendant came to a stop, attempted to escape on foot, and was taken into custody.

The officers involved in the chase did not see anything being thrown from the windows of the Honda, nor was any of Loyas property found on defendants person. Loya was taken to the location where defendant had been detained and identified him as the man who took her car.

Defendant was found guilty of the crimes stated above, the jury rejecting further allegations that defendant had personally used a handgun in the commission of the carjacking and robbery offenses. After the verdicts were read, the court found defendant in violation of probation on a prior misdemeanor trespassing case.

At sentencing, the probation officers report noted a deferred entry of judgment disposition in a cocaine case in addition to the trespassing misdemeanor. The trial court stated that its tentative decision was to impose the high term of nine years for the carjacking, stay sentence for the robbery under Penal Code section 654, and impose concurrent sentences for evading an officer and the misdemeanor probation violation, for a total effective term of nine years.

The court describe[d] some of [its] concerns as follows: Here we have a situation where the defendant turns 18 on December 7th, 2004. Then a month later, January 4th, he commits a trespass violation. I recognize thats a misdemeanor, but he was put on probation. [] And then after he turns 19, on March 15th, hes picked up for possession of cocaine, a felony cocaine base, and again given a break. [] On March 17th, hes admitted into a [deferred entry of judgment] program, where he agrees to all kinds of conditions, including the condition hes got to comply with all laws. [] And then, 12 days later, March 29th, he commits this carjacking and evasion. [] So hes on probation, hes been given certain breaks, and look what he does. [] Compounding this crime is that, in my view, I believe he used a weapon, that he simply didnt point his finger here at the victim and tell her to get out of the car. She believed it was obviously, believed it was a real gun, and she complied. [] . . . [] I realize the jury has a different standard of proof and they did not find the gun use allegation to be true, but their standard [of] proof is proof beyond a reasonable doubt. I believe by a preponderance of the evidence that the defendant used a weapon. [] And then a few hours later, he leads the police on an unbelievable chase down Woodman, going as much as 100 miles an hour, going through traffic lights, endangering lots of people. [] These are all factors that I consider here. In my judgment, this when I weigh all these factors, this appears to warrant the high term.

Later, during the argument on sentencing, the court asked defense counsel, What about the defendants prior convictions as an adult being of increasing seriousness? We start off with a misdemeanor and then you get to the felony, all in the space of a little over a year. The court also referred to the fact that [defendant] was on probation. Following argument, the court stated that it would stand by its tentative ruling and sentenced defendant accordingly.

DISCUSSION

Defendant contends that the trial courts imposition of the upper term prejudicially violated his right to a jury determination of aggravating factors beyond a reasonable doubt under Cunningham. We disagree.

Cunningham held that Californias Determinate Sentencing Law violates a defendants right to a jury trial to the extent it permits a trial court to impose an upper term sentence based on aggravating factors found by the court under the preponderance-of-the-evidence standard rather than by a jury beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at pp. 868871], disapproving People v. Black (2005) 35 Cal.App.4th 1238, 1244 (Black I).) But as the California Supreme Court has made clear in an opinion filed after the briefing in this case was completed, imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (People v. Black (July 19, 2007, S126182) ___ Cal.4th ___, ___ [2007 Cal. Lexis 7604, p.* 29] (Black II).)^[1]

Here, as aptly conceded by defendant, because he was given a concurrent sentence for evading a police officer, the trial courts reliance on the jurys verdict giving rise to this conviction was a proper aggravating factor under Cunningham. Additional aggravating factors on which the trial court relied were also proper under Cunningham because they related to defendants recidivism. (See Black II, supra, ___ Cal.4th at p. ___ [2007 Cal. Lexis 7604, at p.* 37] [prior conviction exception includes not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions].) As explained in Black II, The [trial] courts factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial fact finding on those additional aggravating circumstances is not unconstitutional. (Black II, at p. ___ [p.* 28].)

Applying Black II to this case, and regardless of the trial courts conclusion that defendant had used a gun in the commission of the carjacking, defendants contention of Cunningham error must be rejected.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

VOGEL, J.

JACKSON, J.^*

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^[1]The California Supreme Court has also made clear that where, as here, a defendant was sentenced when Black I was still the law (Black I was decided on June 20, 2005; defendant was sentenced on August 23, 2006), no forfeiture occurs based on failure to raise the issue in the trial court. (People v. Sandoval (July 19, 2007, S148917) ___ Cal.4th ___, ___ [2007 Cal. Lexis 7606, p.* 15].)

^*Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.