P. v. Duarte

Filed 7/25/06 P. v. Duarte CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.

John Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez, Brian Alvarez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant, Raul Duarte, of residential burglary (count 1/Pen. Code, § 460, subd. (a)), possession of methamphetamine (count 2/Health & Saf. Code, § 11377, subd. (a)), felony receiving stolen property (count 3/Pen. Code, § 496, subd. (a)), and misdemeanor possession of drug paraphernalia (count 4/Health & Saf. Code, § 11364). In a separate proceeding, the court found true a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)). On June 27, 2005, the court sentenced Duarte to an aggregate seven-year term as follows: the upper term of six years on count 1, a one-year prior prison term enhancement, a concurrent term on count 2, and stayed terms on counts 3 and 4. On appeal, Duarte contends: 1) the court abused its discretion when it imposed the upper term; and 2) the court committed Blakely^[1] error.

FACTS

On October 22, 2004, Duarte and his wife broke into an apartment belonging to Juan Luciano and took numerous items including a stereo, a microwave oven, jewelry, a video camera, and a satellite receiver.

Duarte was arrested the following morning as he slept in the front seat of a car after a police officer saw a glass pipe and drug paraphernalia on Duarte's lap. A search of Duarte uncovered two baggies containing methamphetamine. The officer also found several household items that were taken from Luciano's apartment.

Duarte's probation report indicates that on February 9, 1993, he was placed on misdemeanor probation for three years on his conviction for driving under the influence of alcohol or drugs. On September 3, 1993, he was placed on two years' probation and ordered to serve 132 days' local time on his conviction for assault by means of force likely to cause great bodily injury. Additionally, in a separate case, he was sentenced to 16 months in prison on his conviction for possession of a controlled substance.

On April 12, 2004, Duarte was deported.

On May 2, 1994, he was placed on three years' misdemeanor probation on his conviction for discharging a firearm in a grossly negligent manner.

On February 17, 1995, he was placed on misdemeanor probation and ordered to serve two days in jail on his conviction for driving with a suspended license.

On May 24, 2005, he was placed on felony probation for three years and ordered to serve one year of local time on his conviction for possession of methamphetamine while armed.

The report noted that Duarte, who was then 37 years old, began using methamphetamine at age 27, and even though he was using $200 worth of drugs per day, he did not consider himself an addict. The report also noted that Duarte denied any culpability in the underlying offenses.

The Sentencing Hearing

At the beginning of Duarte's sentencing hearing, Pastor Luis Bustillo informed the court that he spoke to the victims and they were willing to drop the charges if Duarte returned the stolen items to them. Bustillo subsequently accompanied Duarte's wife when she returned all the items except the birth certificates belonging to the victims' children. Additionally, after the victims demanded money compensation Duarte's wife gave them a bedroom set belonging to her and Duarte. When the court noted that it was Duarte's wife who had actually returned the stolen property, Bustillo stated that Duarte told his wife where the property was located.

Defense counsel then argued that the restitution to the victims of their property and the additional giving of the bedroom set to the victims were unusual circumstances that allowed the court to grant Duarte probation. Alternatively, defense counsel argued that they mitigated Duarte's conduct and argued for the lower term of two years.

However, in sentencing Duarte to the aggravated term on count 1, the court stated:

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