P. v. Aguilera

Filed 8/28/06 P. v. Aguilera CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County, David Mintz, Judge. Affirmed.

Jonathan B. Steiner and Lisa Ferreira, 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 Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Carlos Aguilera raises only one issue on appeal: Whether the imposition of the upper term violates his Sixth Amendment right to a jury trial under Blakely v. Washington (2004) 542 U.S. 296 (Blakely).

The relevant facts are as follows. An information filed on July 14, 2003 charged Aguilera with count 1 for transportation of a controlled substance, methamphetamine (Pen. Code, § 11379, subd. (a)) and with count 2 for possession of methamphetamine for sale (Pen. Code, § 11378). Aguilera pled guilty to count 2. On August 12, 2003, the trial court, under the plea agreement, suspended imposition of sentence and placed Aguilera on formal probation for three years on the conditions, among others, he serve 44 days in jail, stay away from places where users, buyers or sellers congregate, and obey all laws and orders of the court.

Thereafter, on December 15, 2004, Aguilera's probation was revoked. Aguilera admitted the probation violation, and the trial court reinstated probation on the same terms and conditions except Aguilera was required to serve 90 days in jail and to complete a six-month outpatient drug program. Aguilera's probation was extended to December 10, 2006.

But Aguilera again violated the terms of his probation in August 2005. The trial court, on August 17, found that Aguilera was preliminarily in violation of probation, and the court therefore revoked his probation. At the December 2 probation violation hearing, Detective Ignacio Lugo testified that on August 10, he saw Aguilera sitting with people in a driveway. Aguilera gave another man a gun. The trial court then revoked Aguilera's probation. The court found that a factor in aggravation was Aguilera's prior performance on probation, and the court therefore imposed the upper term of three years in prison for Aguilera's 2003 conviction for possession of methamphetamine for sale.

Aguilera now contends that imposing the upper term violates Blakely, supra, 542 U.S. 296. Our California Supreme Court rejected this contention in People v. Black (2005) 35 Cal.4th 1238. Black concluded that â€