P. v. Ross

Filed 2/21/07  P. v. Ross 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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 Kings County.  Louis F. Bissig, Judge.

            Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Wanda Hill Rouzan, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

            This is an appeal from judgment after defendant and appellant Ricky LaVelle Ross was sentenced to prison pursuant to a plea bargain.  Defendant contends the sentence imposed by the trial court violated his Sixth and Fourteenth Amendments right to jury trial.  There is no merit to defendant's claim; we will affirm the judgment.

Facts and Procedural History

            Defendant and another man stole two all-terrain vehicles (ATVs) from a retailer.  Defendant was driving a pickup truck and pulling a trailer onto which the ATVs were loaded.  After a description was broadcast to police agencies in the area, a police officer saw the truck and gave chase.  Defendant pulled over to the shoulder of the road and stopped.  As the police officers approached the truck, defendant sped away, leading those officers and others on a lengthy chase.  Eventually, defendant abandoned the truck.  He was caught a short time later.

            Defendant was charged with two counts of grand theft of an automobile (Pen. Code, §  487, subd. (d)(1)), two counts of vehicle theft (Veh. Code, §  10851, subd. (a)), one felony count of evading a peace officer (Veh. Code, §  2800.2, subd. (a)), and one misdemeanor count of delaying or obstructing a peace officer (Pen. Code, §  148, subd. (a)(1)).  The information also alleged five prior prison term enhancements.  (Pen. Code, §  667.5.)

            Pursuant to People v. West (1970) 3 Cal.3d 595, defendant agreed to plead no contest to one count of grand theft and one count of evading a peace officer in return for dismissal of the remaining counts and the enhancement allegations.  He acknowledged he could receive a maximum prison term of three years, eight months.

            At the sentencing hearing on May  31, 2006, the court imposed the upper term of three years for grand theft based on defendant's â€