P. v. Ervin
Filed 6/8/06 P. v. Ervin CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 TWO
| THE PEOPLE, Plaintiff and Respondent, v. VANCE R. ERVIN, Defendant and Appellant. | B184414 (Los Angeles County Super. Ct. No. TA077957) |
APPEAL from a judgment of the Superior Court of Los Angeles County.
William R. Chidsey, Jr., Judge. Affirmed.
Heather Manolakas, 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, Steven D. Matthews, Supervising Deputy Attorney General, Juliet H. Swoboda, Deputy Attorney General, for Plaintiff and Respondent.
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Vance Ervin was convicted by a jury of possession of a firearm by felon with a prior conviction (Pen. Code, § 12021, subd. (a)(1); count 1)[1] and carrying a loaded and unregistered firearm (§ 12031, subd. (a)(1); count 2), with a finding that he had a prior serious or violent felony conviction (§§ 667, subds. (b) – (i), 1170.12, subds. (a) – (d)). Appellant was sentenced to prison for a total term of six years, consisting of double the upper term of three years on count 2 and a similar stayed sentence on count 1.
Contrary to appellant's contentions, (1) imposition of the upper term did not reflect improper punishment for exercising his right to a jury trial, (2) he was not sentenced for a crime with which he was not convicted, and (3) his sentence complied with the constitutional right to a jury trial and did not violate Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
FACTS
On February 5, 2005, at approximately 11 p.m., two Los Angeles police officers were on duty driving an unmarked Crown Victoria down an alley behind two apartment complexes which faced 120th Street. The officers noticed appellant and two other people standing between the apartment buildings. One of appellant's companions was drinking some beer from a bottle.
The two officers parked their vehicle and then approached appellant and his companions. Appellant turned in their direction and appeared startled to see the police. He turned his body away from the officers and put his hands to his waistband area, with each hand at a pocket. Appellant then pulled a revolver out of his left pants pocket, and tossed it in front of him where it slid several feet across the sidewalk.
One of the officers arrested appellant. The gun appellant had discarded was a .32 caliber revolver containing six live rounds of ammunition. The gun was not registered to appellant.
In appellant's defense at trial, one of his companions asserted that she did not see appellant in possession of the gun and never saw him discard a gun.
DISCUSSION
I. The trial court did not deny appellant due process by imposing a longer prison term after trial than appellant would have received had he accepted the pretrial offer to plead guilty or no contest to the charges.
Contrary to appellant's contention, the court did not punish him with a longer sentence because he chose to go to trial. It is well settled that punishing a defendant for exercising the right to a trial by jury is â€
