P. v. Gil-Corral

Filed 8/25/06 P. v. Gil-Corral CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Luis Mario Gil-Corral appeals from a judgment imposed following revocation of his probation. The trial court sentenced defendant to the upper term of three years in state prison. Defendant contends that imposition of the aggravated term violated Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403; 124 S.Ct. 2531] (Blakely). We affirm.

I. FACTUAL BACKGROUND

On March 20, 2003, defendant waived his right to a preliminary hearing and pled guilty to burglary of a motor vehicle (Pen. Code, § 459). Pursuant to the negotiated disposition, the court dismissed the remaining charge of the complaint, a count alleging misdemeanor possession of burglar tools, and several probation violation petitions with a Harvey[1] waiver. Defendant stipulated that there was a factual basis for the plea. On June 19, 2003, the court suspended imposition of sentence and placed defendant on probation for a period of five years.

The court subsequently sustained three probation violation petitions filed on February 6, 2004, June 8, 2004, and June 17, 2004, and reinstated defendant on probation. On November 18, 2004, the probation department filed a fourth probation violation petition alleging that defendant was terminated from his residential treatment program. On April 22, 2005, the court sustained the petition and revoked defendant's probation.

On May 20, 2005, the court sentenced defendant to the aggravated term of three years in state prison, finding that the upper term was appropriate based on defendant's record of prior convictions and noncompliance with the terms of probation.

II. DISCUSSION

Defendant contends that the trial court's imposition of the upper term deprived him of his right to a jury trial under Blakely because the sentencing decision was based on facts neither admitted by him nor found true by a jury. He acknowledges that his claim was rejected by our Supreme Court's recent decision in People v. Black (2005) 35 Cal.4th 1238 but raises the issue to preserve it for federal court review. In Black, our Supreme Court determined that Blakely does not apply to California's determinate sentencing scheme. â€