P. v. Gamboa

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Filed 3/27/07 P. v. Gamboa CA4/2
Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
HENRY LOPEZ GAMBOA, JR.
Defendant and Appellant.
E040858
(Super.Ct.No. FVI019977)
OPINION
APPEAL from the Superior Court of San Bernardino County. Erik M. Nakata,
Judge. Affirmed.
Carmela F. Simoncini, under appointment by the Court of Appeal, for Defendant
and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves,
Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General,
Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Robert M.
Foster, Deputy Attorney General, for Plaintiff and Respondent.

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Defendant and appellant Henry Gamboa pled guilty to grand theft of personal
property (Pen. Code, § 487, subd. (a))1 in exchange for a grant of probation. He later
violated his probation. The trial court revoked defendant’s probation and sentenced him
to the upper term of three years. Defendant’s sole claim on appeal is that the trial court
abused its discretion in imposing the upper term. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant admitted to the police that he stole a door from a store. The door was
valued at $800.
Defendant was charged with grand theft of personal property. (§ 487, subd. (a).)
He entered a plea agreement and pled guilty to the charge, in exchange for a grant of
probation for a period of three years, subject to various terms and conditions. On
February 9, 2005, the court withheld pronouncement of judgment and granted defendant
probation in accordance with the plea agreement.
On April 11, 2005, defendant requested, and the court ordered, a modification of
the terms of his probation. The court modified the condition that he serve 180 days in
county jail and ordered that he report to Glen Helen Rehabilitation Center instead.
Defendant was ordered to report to Glen Helen on April 25, 2005, but he failed to do so.
Thus, the court revoked his probation and issued an arrest warrant for this violation of
probation.
1 All further statutory references are to the Penal Code unless otherwise indicated.

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On April 10, 2006, defendant appeared in court, having been charged for driving
under the influence of alcohol. (Veh. Code, § 23152, subds. (a) & (b).) He pled no
contest to that charge. The court questioned defendant about his violation of probation.
Defendant provided proof that he had completed the jail time term of probation, so the
court reinstated his probation.
On May 19, 2006, the probation officer filed a petition for revocation of probation,
alleging that defendant violated the conditions that he report to the probation officer,
cooperate with the probation officer in a rehabilitation plan and follow all reasonable
directives, and keep the probation officer informed of his place of residence.
A hearing was held on June 30, 2006. After hearing testimony from the probation
officer and from defendant, the court found that defendant had violated his probation.
The court sentenced defendant to the upper term of three years in state prison.
ANALYSIS
The Trial Court Properly Imposed the Aggravated Term
Defendant claims that the court improperly imposed the upper term relying on
factors that arose after the initial grant of probation, in violation of California Rules of
Court, rule 4.435(b). We find no error.
We begin by noting that a single valid factor in aggravation is sufficient to justify
the imposition of the upper term. (People v. Castellano (1983) 140 Cal.App.3d 608, 615
(Castellano).)
Here, the court cited four reasons for imposing the upper term: 1) defendant’s
history on probation was poor; 2) defendant had three felony convictions; 3) his pattern

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of crime was becoming increasingly violent; and 4) he lied on the witness stand at the
probation revocation hearing. Three of these reasons existed at the time of the original
grant of probation.
The probation report that was presented to the court at the time it granted
probation listed four aggravating factors. One of the factors was that defendant’s prior
convictions were numerous and of increasing seriousness. Defendant’s prior convictions
included possession of a controlled substance, taking a vehicle without the owner’s
consent, embezzlement, and battery. Thus, at sentencing, the court properly cited that
defendant’s pattern of crime was becoming increasingly violent and that defendant had
three felony convictions. Another aggravating factor cited was that defendant’s prior
performance on parole was unsatisfactory. Defendant concedes this factor.
In sum, the record belies defendant’s claim that the court improperly relied on
factors that did not exist at the time of the grant of probation. Even if it was improper for
the court to rely on its belief that defendant lied on the witness stand at the probation
revocation hearing (e.g., postprobation conduct), the court properly relied on the other
factors. As stated earlier, a single valid factor in aggravation is sufficient to justify an
upper term. (Castellano, supra, 140 Cal.App.3d at p. 615.)
In addition, defendant filed a petition for rehearing following the Supreme Court’s
decision in Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856, 166 L.Ed.2d
856] (Cunningham). He now contends that the trial court violated his Sixth Amendment
right to have a jury determine the facts upon which the court relied to sentence him to the
aggravated term, citing Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and

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Cunningham, supra, 127 S.Ct. 856. We disagree.
At the outset, the People assert that defendant forfeited his Blakely claim by failing
to raise it at the sentencing hearing. We disagree. At the time of defendant’s sentencing
and subsequent appeal, the decision in People v. Black (2005) 35 Cal.4th 1238 (Black)
was the controlling precedent. Black held that Blakely did not apply to California’s
determinate sentencing law. (Black, supra, at p. 1244.) In light of that holding, it would
have been futile for defendant to raise a Blakely objection at sentencing. “Reviewing
courts have traditionally excused parties for failing to raise an issue at trial where an
objection would have been futile or wholly unsupported by substantive law then in
existence.” (People v. Welch (1993) 5 Cal.4th 228, 237-238.) Thus, defendant did not
waive his claim of Blakely error by failing to object in the trial court. Nonetheless,
defendant’s contention fails.
The United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S.
466 (Apprendi) that “[o]ther 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, emphasis added.) In
Cunningham, supra, 127 S.Ct. 856, the United States Supreme Court overruled Black in
part and held that California’s determinate sentencing law violates Apprendi’s bright-line
rule. (Cunningham, supra, at p. 868.) However, Cunningham has no effect on the instant
case. As we have pointed out, an exception to the Apprendi rule is that the trial court
may increase the penalty for a crime based upon the defendant’s prior convictions,
without having this aggravating factor submitted to the jury and proved beyond a

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reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.) That is what occurred in this
case. The court cited the fact that defendant had three prior felony convictions as a basis
for imposing the upper term. Consequently, the court’s consideration of other
aggravating factors that were not submitted to the jury was harmless because one valid
aggravating factor was sufficient to expose defendant to the upper term. (Castellano,
supra, 140 Cal.App.3d at p. 615.) Thus, the court properly imposed the upper term.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
McKINSTER
J.
RICHLI
J.

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