Opinion
F051546
11-16-2007
THE PEOPLE, Plaintiff and Respondent, v. RUBEN GONZALEZ, Defendant and Appellant.
William Davies, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Levy, Acting P.J.; Cornell, J.; and Gomes, J.
Appellant, Ruben Gonzalez, pled no contest to vehicle theft (Veh. Code, § 10851, subd. (a)) and admitted allegations that he had two prior convictions within the meaning of the three strikes law (Pen. Code, § 667, subds. (b)-(i)) in exchange for a "lid" of 25 years to life and the dismissal of several charges. On October 19, 2006, the court struck one prior conviction and sentenced Gonzalez to the aggravated term of three years on his vehicle theft conviction which was doubled to six years because of the remaining prior conviction. On appeal, Gonzalez contends the court committed Blakely error when it imposed the aggravated term on his vehicle theft convictions. We will affirm.
Blakely v. Washington (2004) 542 U.S. 296.
Gonzalez also contends that if the matter is remanded to the trial court for resentencing, there is no procedural mechanism for a jury trial on resentencing. In light of our decision to affirm the judgment we will not address this contention.
FACTS
On April 9, 2006, Kern County deputies pulled over Gonzalez because the vehicle he was driving had an expired registration tag. Gonzalez initially misidentified himself as Juan Gonzalez. The deputies arrested Gonzalez after dispatch informed them that Gonzalez had an outstanding warrant and that the car had been stolen from Jims R and H Towing.
Gonzalezs probation report indicates that he had a lengthy record dating back to 1983 when he was a juvenile. As a juvenile, Gonzalez was adjudicated on one count each of possession of stolen property and trespass and two counts each of second degree burglary and assault with a deadly weapon. He also served a commitment to the California Youth Authority (CYA). As an adult, Gonzalez was convicted of nine misdemeanors and one felony and he served one prison term. Gonzalez also violated his probation numerous times and his parole three times.
The "CYA" is now known as Juvenile Justice in the Department of Corrections and Rehabilitation. (Welf. & Inst. Code, § 1703, subd. (c); Gov. Code, §§ 12838, 12838.5.)
In imposing the aggravated term on Gonzalezs vehicle theft conviction the court stated:
"There are no mitigating circumstances. In aggravation, the defendants prior convictions as an adult and sustained petitions in juvenile delinquency proceedings are numerous.... The defendant was on probation at the time of the commission of this offense. Defendants prior performance on juvenile and misdemeanor probation as well as CYA parole and state parole has been unsatisfactory in that he failed to abide by the terms of his probation and parole and continued to re-offend."
DISCUSSION
Gonzalez contends the court violated his sixth amendment right to a jury trial when it imposed the aggravated term based on facts that were not found true by a jury beyond a reasonable doubt. We disagree.
In People v. Bobbit (2006) 138 Cal.App.4th 445, 447, the court held that when a defendant negotiates a plea bargains that provides for a maximum sentence or "lid," he may not challenge the trial courts authority to impose an upper term sentence based on the absence of a jury finding on one or more aggravating circumstances (see Blakely v. Washington, supra, 542 U.S. 296) unless he obtains a certificate of probable cause. Since Gonzalezs negotiated plea also contained a maximum sentence, Gonzalezs contention is not cognizable on appeal because he failed to obtain a certificate of probable cause.
Moreover, "the specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term." (People v. Shelton (2006) 37 Cal.4th 759, 768.)
Here, during the change of plea proceedings Gonzalez agreed that the court could impose a maximum term of 25 years to life under the plea agreement. Further, since the six-year term the court imposed was less than the maximum term provided for by Gonzalezs plea agreement, he implicitly agreed that the court could impose this lesser term without any additional factfinding by the court or a jury.
In any event, even if this issue were properly before us we would reject it. Recently, in People v. Black (2007) 41 Cal.4th 799 the California Supreme Court held:
"... [S]o long as a defendant is eligible [original italics] for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. `Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments. [Citation.] Facts considered by trial courts in exercising their discretion within the statutory range of punishment authorized for a crime `have been the traditional domain of judges; they have not been alleged in the indictment or proved beyond a reasonable doubt. There is no reason to believe that those who framed the Fifth and Sixth Amendments would have thought of them as the elements of the crime. [Citations [the `Sixth Amendment cases do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence].]" (Id. at p. 813, italics added except as noted.)
The Black court also held that the trial court can properly consider the number and seriousness of a defendants prior convictions in imposing the aggravated term. In so doing it stated:
"The determinations whether a defendant has suffered prior convictions, and whether those convictions are `numerous or of increasing seriousness [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is `quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court. [Citation.]" (People v. Black, supra, 41 Cal.4th at pp. 819-820, fn. omitted.)
Here, under Black, the trial courts finding that Gonzalezs convictions were numerous was by itself sufficient to make him eligible for the aggravated term. In view of this, the courts imposition of the aggravated term did not violate Gonzalezs Sixth Amendment right to a jury trial, even though in imposing this term the court considered other circumstances in addition to the numerosity of Gonzalezs convictions. Accordingly, we conclude that even if this issue were properly before us we would reject it.
DISPOSITION
The judgment is affirmed.