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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 PEOPLE,
Plaintiff and Respondent,
v.
RICARDO RAMOS,
Defendant and Appellant.
F051122
(Super. Ct. No. 06CM1934)
OPINION
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.
* Before Vartabedian, Acting P.J., Wiseman, J. and Hill, J.

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2.
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 neighbor’s 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 defendant’s
“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 court’s
characterization of defendant’s 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 defendant’s 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 court’s determination that his criminal record was

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3.
“extensive.” According to defendant, “although appellant’s 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 defendant’s
prior crimes. It may determine, instead, that prior punishments have failed to deter the
defendant’s 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, defendant’s 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 court’s focus in imposing the upper term in this case was upon
defendant’s record of prior convictions. To the extent the court mentioned defendant’s
prior violation of probation, that factor was merely peripheral to the court’s
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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