P. v. Ramos

Filed 4/24/07 P. v. Ramos CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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.

John F. Schuck, 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, Louis M. Vasquez and Kelly C. Fincher, Deputy Attorneys General, for Plaintiff and Respondent.

This is an appeal from judgment after a jury found defendant Ricardo Ramos guilty of one count of arson of property (Pen. Code,  451, subd. (d)). Defendant contends the court abused its discretion in imposing the upper term of three years for the crime. He also contends the court violated his Sixth and Fourteenth Amendment rights in basing the sentence on facts not admitted or found true by the jury. (See Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856].) We will affirm the judgment.

Facts and Procedural History

In a neighborhood dispute, defendant poured gasoline over his neighbors car and lit it. The car was damaged in the amount of $2,253.50.

At sentencing, the court announced its tentative disposition: Based on defendants rather extensive criminal record and his history of probation violations, and the absence of mitigating factors, the court found appropriate the upper term of imprisonment. In response, defense counsel took just slight issue with the courts characterization of defendants criminal history as extensive. Counsel pointed out that defendant had only one prior felony conviction (as to which a prior prison term enhancement was imposed); all other convictions were for misdemeanors such as sale of alcohol to a minor (Bus. & Prof. Code,  25658, subd. (a)), possession of drug paraphernalia (Health & Saf. Code,  11364), and failure to appear for court (Pen. Code,  853.7). Counsel said defendants record reflected more scofflaw behavior than extensive criminality. Defendant did not suggest any mitigating factors.

The court, for the reasons stated in the tentative decision, imposed the upper term of three years for arson of property, plus one year for the prior prison term enhancement (Pen. Code,  667.5.) Defendant filed a timely notice of appeal.

Discussion

In essence, defendant contends the trial court abused its discretion because defendant disagrees with the courts determination that his criminal record was extensive. According to defendant, although appellants criminal record may, technically, be extensive, his offenses are relatively minor misdemeanors.

The trial court is not required to narrowly focus on the nature of a defendants prior crimes. It may determine, instead, that prior punishments have failed to deter the defendants criminal behavior, and such a conclusion supports imposition of the upper term of imprisonment for the present offense. (People v. Whitten (1994) 22 Cal.App.4th 1761, 1767-1768.) Here, defendants prior imprisonment had not deterred him from further misdemeanor conduct nor had it convinced him to appear in court when he promised to do so. Pursuant to California Rules of Court, rule 4.421(b)(2), the trial court was justified in imposing the upper term in this case.

Defendant also contends imposition of the upper term in this case violated the Sixth and Fourteenth Amendments to the United States Constitution pursuant to the rule articulated in People v. Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856]. Cunningham, however, does not prohibit a sentencing court from relying on prior convictions as a sentencing factor, even if other sentencing facts must be admitted or found true by the finder of fact. (See Apprendi v. New Jersey (2000) 530 U.S. 466, 490.)

Clearly, the trial courts focus in imposing the upper term in this case was upon defendants record of prior convictions. To the extent the court mentioned defendants prior violation of probation, that factor was merely peripheral to the courts determination. If such reliance is error, it was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)

The trial court neither abused its discretion nor deprived defendant of constitutionally protected rights.

Disposition

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Wiseman, J. and Hill, J.