P. v. Gonzales

Filed 2/21/07 P. v. Gonzales CA5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 PEOPLE,
Plaintiff and Respondent,
v.
JUSTIN ERIC GONZALES,
Defendant and Appellant.
F050109
(Super. Ct. No. 1101949)
O P I N I O N
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Edward
M. Lacy, Jr., Judge.
Larry L. Dixon, 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 Michael A. Canzoneri,
Deputy Attorney General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
*Before Wiseman, Acting P.J., Gomes, J., and Dawson, J.

-- 1 of 5 --

2
Appellant, Justin Eric Gonzales, was found guilty after a jury trial of felony
vehicle theft (Veh. Code, § 10851, subd. (a), count one) and felony evasion of a peace
officer (Veh. Code, 2800.2, subd. (a), count two). On March 24, 2006, the trial court
sentenced Gonzales to the upper prison term of three years on count one and to a
concurrent upper term sentence on count two of three years. The court imposed a
restitution fine and granted Gonzales 159 days of custody credits.
On appeal, Gonzales contends the trial court violated his right to a jury trial when
it relied on aggravating factors to impose the upper term sentence. (Cunningham v.
California 549 U.S. __ [127 S.Ct. 856] (Cunningham).) We disagree and affirm.
FACTS
Offense
On December 8, 2005, Katherine Davis was sitting in her parked car in a
supermarket parking lot when two men drove up beside a red truck parked nearby and
walked around it. The men got back into their vehicle and drove up beside the truck. A
few minutes later, Gonzales climbed feet first into the passenger window of the red truck.
He positioned himself behind the steering wheel and leaned over it. Within three
minutes, he started the truck and drove away. Davis called the police to initially report
suspicious behavior. Later she called the police to report that the truck was stolen.
Modesto Police Officer Troy Cross observed Gonzales driving the red truck
shortly after receiving a dispatch that the truck was stolen. Cross followed Gonzales and
activated his lights and siren to effectuate a vehicle stop. Gonzales immediately went
into the opposite lane of traffic and passed three cars. Cross determined it was unsafe to
chase Gonzales. Gonzales crashed into a parked vehicle and fled on foot.
Cross radioed for assistance to set up a perimeter. Officer Jared Ramirez spotted
Gonzales and ordered him to the ground. Gonzales complied and was handcuffed.
Gonzales spontaneously stated that he was going to hide in a refrigerator but was out of
breath.

-- 2 of 5 --

3
Sentencing
The probation officer’s report noted there were no mitigating factors. The report
listed six aggravating factors: (1) the manner in which the crime was carried out indicates
planning, sophistication, or professionalism; (2) appellant’s sustained petitions in juvenile
delinquency proceedings are numerous and of increasing seriousness; (3) appellant
served a prior commitment in the California Youth Authority (CYA); (4) appellant was
on CYA parole when the instant offense was committed; (5) appellant’s prior
performance on probation and/or parole was unsatisfactory; (6) appellant was not a
licensed driver when he committed the instant offense.
The court noted there was nothing mitigating about appellant’s case. The court
noted that had appellant been tried with a minimal record or no record, the People would
likely recommend probation. The court found true the first five aggravating factors and
expressly applied them to deny appellant probation. The court found no possible factors
in support of granting appellant probation.
In applying the upper term sentence, the court noted it could not use the same
factors it applied in denying appellant probation. The court found true factor six, that
appellant was not a licensed driver when he committed the offense. The court noted it
would not consider this factor “nearly enough alone or in conjunction with any other
factor to impose the aggravated term.” The court stated the probation officer did not list
as a possible aggravating factor California Rules of Court, rule 4.421(a)(7).1 The court
explained it was adding this factor in its evaluation of appellant’s sentence. The court
found no factors in mitigation. The court imposed the upper term on both counts,
ordering appellant’s sentence on count two concurrent to count one.
1 California Rules of Court, rule 4.421(a)(7) holds that circumstances in aggravation
include: “The defendant was convicted of other crimes for which consecutive sentences
could have been imposed but for which concurrent sentences are being imposed.”

-- 3 of 5 --

4
UPPER TERM
The trial court imposed the upper prison term on both counts and ordered the time
to run concurrent. On appeal, appellant contends that he was denied his constitutional
right to trial by jury and due process of law because the court imposed the upper term on
both counts based on aggravating factors that were not found by a jury beyond a
reasonable doubt. (Blakely v. Washington (2004) 542 U.S. 296 (Blakely); Cunningham,
supra, 549 U.S. __ [127 S.Ct. 856].) The trial court imposed the upper terms based on
two factors: 1) that appellant was not a licensed driver when he committed the offense,
and 2) that appellant was convicted of other crimes for which consecutive sentences
could have been imposed but for which concurrent sentences were imposed instead.
(Cal. Rules of Court, rule 4.421(a)(7).) There were other factors in the record which the
trial court used to deny probation, including those related to appellant’s recidivism;
however, the trial court expressly did not use these factors to justify imposing the upper
terms.
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), a five-justice majority
of the United States Supreme Court held, “Other than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) Blakely
held that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a
judge may impose solely on the basis of the facts reflected in the jury verdict or admitted
by the defendant. [Citations.]” (Blakely, supra, 542 U.S. at p. 303, italics omitted.) In
Cunningham, the court held that, under California’s determinant sentencing scheme, the
upper term can only be imposed if the factors relied upon comport with the requirements
of Apprendi and Blakely. (Cunningham, supra, 549 U.S. __ [127 S.Ct. 856].)
Blakely describes three types of facts that a trial judge can properly use to impose
an aggravated sentence: (a) “‘the fact of a prior conviction’” (Blakely, supra, 542 U.S. at
p. 301); (b) “facts reflected in the jury verdict” (Id. at p. 303, italics omitted); and

-- 4 of 5 --

5
(c) facts “admitted by the defendant” (ibid., italics omitted). The second type is at issue
here, i.e., facts reflected in the jury verdict.
Appellant was convicted of two felony charges for which consecutive sentences
could have been imposed. Instead, he received the upper term on each count and his time
was ordered to run concurrent. After noting that appellant’s status as an unlicensed
driver when he committed the offense was not “nearly enough alone or in conjunction
with any other factor” to justify imposition of the upper terms, the court chose to include
another aggravating factor in its evaluation. It stated that pursuant to rule 4.421(a)(7),
given that appellant could have been given consecutive sentences, but was given instead
concurrent sentences, the upper term was justified. In doing so, the court relied upon
facts reflected in the jury verdict, i.e., the fact that the jury convicted him of two offenses.
Therefore, the imposition of the upper term is supported by facts found by a jury. Given
this additional factor, we conclude that appellant’s sentence does not violate Apprendi,
Blakely, or Cunningham.
In any event, any error in considering the remaining factors not falling in one of
the three permissible categories identified in Blakely, was harmless under either
Chapman v. California (1967) 386 U.S. 18 (harmless beyond a reasonable doubt) or
People v. Watson (1956) 46 Cal.2d 818, 836 (reasonable probability error did not impact
outcome). The trial court stated that the other factor it was considering, which was
invalid under Blakely because it included a fact not found by a jury, was not “nearly
enough alone or in conjunction with any other factor” to justify the upper terms. The
factor indisputably relied upon by the court in choosing the upper terms was that
appellant had been convicted of two independent offenses for which concurrent rather
than consecutive terms were being imposed. Under these circumstances, remand for
resentencing is unnecessary.
DISPOSITION
The judgment is affirmed.

-- 5 of 5 --