P.v. Macklin

Filed 6/16/06 P.v. Macklin 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from judgments of the Superior Court of Los Angeles County, superior court case Nos. LA 049000 and LA 046770. Leland B. Harris, Judge. Affirmed as to case No. LA 049000; dismissed as to case No. LA046770.

Murray A. Rosenberg, 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, Assistant Attorney General, Lawrence M. Daniels and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

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John J. Macklin (defendant) was found guilty by a jury of receiving stolen property, a felony. (Pen. Code, § 496, subd. (a).)^[1] The trial court sentenced defendant to an upper term of three years in state prison.

On appeal, defendant contends that the imposition of the upper term of imprisonment constitutes Blakely error. (Blakely v. Washington (2004) 542 U.S. 296 (Blakely).)

We find the contention to be meritless and affirm the judgment.

THE FACTS

The trial evidence established that on May 4, 2004, Los Angeles Police Officer James Woods and his partner, who were in plainclothes and driving an unmarked van, saw defendant removing the front license plate from a red Jeep Cherokee. They parked and watched as defendant switched the license plates on the Jeep. They then detained defendant. Defendant explained that the Jeep did not belong to him and that he was changing the license plates because the Jeep's registration was not current. The officers arrested defendant.

At the police station, after a Miranda waiver (Miranda v. Arizona (1966) 384 U.S. 436), defendant said that a friend of his had stolen the license plates, California No. 7M26667, from a pickup truck in his presence, and the friend then gave the license plates to defendant. Defendant knew the license plates were stolen, and he put the stolen license plates on the Jeep because he did not want to get pulled over driving that vehicle.

At sentencing in case No. LA049000, the trial court observed that defendant had been found guilty of violating section 496, subdivision (a), receiving stolen property, a felony. The trial court indicated that it had read and considered defendant's probation report, which indicated that defendant was 38 years old. The probation report stated further facts about the underlying offense. The Jeep belonged to defendant's wife. The officers had contacted defendant's parole officer. They told the parole officer about the license plates and said that defendant had claimed that he had spent the night at his wife's residence and that she had allowed him to borrow her Jeep. The parole officer informed them that one of the conditions of defendant's parole was that defendant not have contact with his wife. The parole officer asked the officers to arrest him.

Defendant's criminal history was set out in the probation report, as follows. In 1988 and 1990, defendant was convicted of misdemeanor trespassing. In 1992, in separate cases, he was convicted of driving under the influence of alcohol and of misdemeanor corporal injury to a spouse. In 1995, he was convicted of petty theft in two different misdemeanor cases. In a third misdemeanor case in 1995, he was arrested for inflicting corporal injury on a spouse, and a violation of section 148, subdivision (a). He was convicted of simple battery and of a violation of section 148, subdivision (a). As a condition of probation, he was sentenced to the county jail for 180 days. In 1996, he was arrested for possessing narcotic paraphernalia, and in 1997, in the same case, he was convicted of driving with a suspended license. In 1997, he was arrested for receiving stolen property and convicted of driving while his driver's license was suspended (Veh. Code, § 14601.1 subd. (a)). In 2001, he was convicted of felony corporal injury on a spouse and granted formal probation on condition that he spend 365 days in the county jail. In 2003, he was convicted of section 273.6, violating a protective order or injunction and sentenced to 180 days in the county jail. On June 5, 2003, he was arrested for grand theft (§ 487d) and convicted of a violation of Vehicle Code section 2800.2, evading a police officer with a disregard for safety, a felony. He was sentenced to state prison for two years. On August 18, 2004, he was arrested for making a terrorist threat and for a parole violation. Thereafter, in the same case, he was convicted of misdemeanor vandalism and two counts of the unauthorized entry into a noncommercial dwelling. (Case No. LA046770.) These convictions resulted in a short state prison commitment for a parole violation.

Defendant told the probation officer that when he was committed to state prison, he had been abusing rock cocaine, marijuana, and alcohol. He claimed, however, that he was using controlled substances only several times a year. When the probation officer expressed skepticism about that claim, defendant became angry and terminated the interview.

In the report, the probation officer concluded that probation was not available to defendant pursuant to section 1203, subdivision (e)(4), as this was not an â€