P. v. Ross

Filed 2/21/07 P. v. Ross 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 PEOPLE,
Plaintiff and Respondent,
v.
RICKY LAVELLE ROSS,
Defendant and Appellant.
F050599
(Super. Ct. No. 06CM0972)
OPINION
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
* Before Vartabedian, Acting P.J., Cornell, J. and Dawson, J.

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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 “extensive record of criminality, and the
prior prison commitment, and the fact that he’s on parole or on probation, and has a
history of violations of probation and parole.” The court imposed a consecutive sentence
for evading a peace officer because that offense was separate and distinct: the theft “had
been resolved by apprehension before the second crime, the evasion[,] began.”
Defendant filed a timely notice of appeal.

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Discussion
In briefing completed prior to the decision of the United States Supreme Court in
Cunningham v. California (Jan. 22, 2007, No. 05-6551) 549 U.S. ___ [2007 WL
135687], defendant contends the court imposed the upper term sentence and the
consecutive sentence in violation of the Sixth and Fourteenth Amendments as interpreted
by the line of cases culminating in United States v. Booker (2005) 543 U.S. 220.
Defendant contends he neither had nor waived a jury trial on the factors upon which the
trial court relied in imposing the upper term and consecutive sentences.
To impose the upper term sentence for grand theft, the trial court relied on
defendant’s prior convictions and failures on parole and probation. There is no
requirement under the Sixth and Fourteenth Amendments that the fact of prior
convictions be admitted or found true by a jury for this factor to be used in sentencing.
(Almendarez-Torres v. United States (1998) 523 U. S. 224, 243; see Cunningham v.
California, supra, 549 U.S. ___ [2007 WL 135687] (slip opn. at p. 9).) Accordingly,
reliance by the trial court on defendant’s prior convictions was not error under Booker
and Cunningham. Even if there were such error, the error was harmless beyond a
reasonable doubt; furthermore, there was no abuse of discretion by the court.
To impose the consecutive sentence for evading a peace officer, the trial court
relied on the fact that this crime was separate and distinct from the theft. (See Cal. Rules
of Court., rule 4.425(a)(1) [“The crimes and their objectives were predominantly
independent of each other”].) Defendant has not, however, convincingly explained why
cases such as Booker and Cunningham should apply to the consecutive sentencing issue
at all. Defendant’s sentence for evading a peace officer was only one-third the middle
term for that crime, and the middle term is specified in Cunningham as the maximum
sentence permitted without further factfinding. Because defendant’s sentence does not
exceed the maximum sentence permitted for the crime, the Booker/Cunningham

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restrictions do not apply. (See Cunningham v. California, supra, 549 U.S. ___ [2007
WL 135687] (slip opn. at p. 16).)
Even assuming the decision to impose consecutive sentences is subject to the
limitations in Booker and Cunningham, by entering a no contest plea as part of a plea
bargain that expressly permitted a total sentence of three years, eight months (and
therefore necessarily contemplated consecutive sentences), we hold that defendant has
admitted the facts necessary to support imposition of that term of imprisonment. Finally,
even assuming the matter was required to be addressed directly in defendant’s waiver of
his right to jury trial, defendant has not claimed the failure to expressly waive the right to
jury trial on this limited issue rendered his guilty plea involuntary or in any other manner
has prejudiced him.
Disposition
The judgment is affirmed.

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