P. v. Gamboa

Filed 1/23/07  P. v. Gamboa CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of San Bernardino County.  Erik M. Nakata, Judge.  Affirmed.

            Carmela F. Simoncini, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Robert M. Foster, Deputy Attorney General, for Plaintiff and Respondent.

            Defendant and appellant Henry Gamboa pled guilty to grand theft of personal property (Pen. Code, § 487, subd. (a))^[1] in exchange for a grant of probation.  He later violated his probation.  The trial court revoked defendant's probation and sentenced him to the upper term of three years.  Defendant's sole claim on appeal is that the trial court abused its discretion in imposing the upper term.  We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

            Defendant admitted to the police that he stole a door from a store.  The door was valued at $800.

            Defendant was charged with grand theft of personal property.  (§ 487, subd. (a).)  He entered a plea agreement and pled guilty to the charge, in exchange for a grant of probation for a period of three years, subject to various terms and conditions.  On February 9, 2005, the court withheld pronouncement of judgment and granted defendant probation in accordance with the plea agreement.

            On April 11, 2005, defendant requested, and the court ordered, a modification of the terms of his probation.  The court modified the condition that he serve 180 days in county jail and ordered that he report to Glen Helen Rehabilitation Center instead.  Defendant was ordered to report to Glen Helen on April 25, 2005, but he failed to do so.  Thus, the court revoked his probation and issued an arrest warrant for this violation of probation.

            On April 10, 2006, defendant appeared in court, having been charged for driving under the influence of alcohol.  (Veh. Code, § 23152, subds. (a) & (b).)  He pled no contest to that charge.  The court questioned defendant about his violation of probation.  Defendant provided proof that he had completed the jail time term of probation, so the court reinstated his probation.

            On May 19, 2006, the probation officer filed a petition for revocation of probation, alleging that defendant violated the conditions that he report to the probation officer, cooperate with the probation officer in a rehabilitation plan and follow all reasonable directives, and keep the probation officer informed of his place of residence.

            A hearing was held on June 30, 2006.  After hearing testimony from the probation officer and from defendant, the court found that defendant had violated his probation.  The court sentenced defendant to the upper term of three years in state prison.

ANALYSIS

The Trial Court Properly Imposed the Aggravated Term

            Defendant claims that the court improperly imposed the upper term relying on factors that arose after the initial grant of probation, in violation of California Rules of Court, rule 4.435(b).  We find no error.

            We begin by noting that a single valid factor in aggravation is sufficient to justify the imposition of the upper term.  (People v. Castellano (1983) 140 Cal.App.3d 608, 615 (Castellano).)

            Here, the court cited four reasons for imposing the upper term:  1) defendant's history on probation was poor; 2) defendant had three felony convictions; 3) his pattern of crime was becoming increasingly violent; and 4) he lied on the witness stand at the probation revocation hearing.  Three of these reasons existed at the time of the original grant of probation.

            The probation report that was presented to the court at the time it granted probation listed four aggravating factors.  One of the factors was that defendant's prior convictions were numerous and of increasing seriousness.  Defendant's prior convictions included possession of a controlled substance, taking a vehicle without the owner's consent, embezzlement, and battery.  Thus, at sentencing, the court properly cited that defendant's pattern of crime was becoming increasingly violent and that defendant had three felony convictions.  Another aggravating factor listed was that defendant's prior performance on parole was unsatisfactory.  Defendant concedes this factor.

            In sum, the record belies defendant's claim that the court improperly relied on factors that did not exist at the time of the grant of probation.  Even if it was improper for the court to rely on its belief that defendant lied on the witness stand at the probation revocation hearing (e.g., postprobation conduct), the court properly relied on the other factors.  As stated earlier, a single valid factor in aggravation is sufficient to justify an upper term.  (Castellano, supra, 140 Cal.App.3d at p. 615.) 

DISPOSITION

            The judgment is affirmed.

            NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST                 

                                                Acting P. J.

We concur:

McKINSTER                        

                                             J.

RICHLI                                  

                                             J.

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            ^[1]  All further statutory references are to the Penal Code unless otherwise indicated.