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People v. Mendoza

California Court of Appeals, First District, Fifth Division
Mar 10, 2008
No. A117797 (Cal. Ct. App. Mar. 10, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. ALBERTO MENDOZA, Defendant and Appellant. A117797 California Court of Appeal, First District, Fifth Division March 10, 2008

NOT TO BE PUBLISHED

Lake County Super. Ct. No. CR910811

SIMONS, J.

On October 6, 2006, the Lake County District Attorney charged appellant Alberto Mendoza with a felony, failing to register as a sex offender (Pen. Code, § 290, subd. (a)(1)(A)) (count 1), and a misdemeanor, inflicting corporal injury on a cohabitant (§ 273.5, subd. (a)) (count 2). Pursuant to the “three strikes” law, the district attorney also alleged that appellant had suffered two prior serious or violent felony convictions for violating section 288, subdivision (a). (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)

All undesignated section references are to the Penal Code.

On February 2, 2007, pursuant to a negotiated disposition, appellant pled no contest to the charge of failing to register and admitted one prior strike allegation. Appellant’s sentence was to be no more than six years in prison, and count 2 and the second strike allegation were to be dismissed. Appellant entered a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) as to the dismissed prior strike allegation and said that he waived his rights under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856].

On April 27, 2007, the trial court denied appellant’s motion under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike the enhancement allegation, and sentenced him to the aggravated term of three years—doubled to six years pursuant to the three strikes law.

Appellant filed a timely notice of appeal on May 11, 2007.

Statement Of Facts

There was no preliminary hearing and the issue on appeal relates to sentencing only. The statement of facts is taken from the probation officer’s report and recommendation submitted on April 27, 2007.

On September 30, 2006, an officer was dispatched to a house in Clearlake regarding a report of domestic abuse. The officer contacted the victim, who stated that she had an argument with appellant, her live-in boyfriend. The officer located appellant at his cousin’s house in Clearlake and appellant admitted living with the victim.

Further investigation revealed that appellant was a registered sex offender in Sonoma County and was required to notify it within five days if he changed his residence or moved out of county. He was also required to register in the county where he resided. The investigation revealed that appellant moved to Lake County in January 2006, and had been working and residing there. He did not notify Sonoma County of his move, and did not register in Lake County as required by section 290.

Discussion

Appellant challenges the trial court’s decision to impose the upper term sentence.

The trial court apparently relied upon four factors in aggravation to impose the upper term: (1) the circumstances of the failure to register were egregious; (2) appellant had prior criminal convictions, including two felony convictions for violating section 288, subdivision (a); (3) the facts of those two felony convictions were “aggravated”; and (4) the facts underlying a rape charge that was dismissed at the time of his earlier felony convictions were aggravated. In mitigation, the court found that the defendant (1) “voluntarily acknowledged wrongdoing at an early stage in the criminal process”; (2) performed satisfactorily on parole following his prior felony convictions; and (3) “has been conviction free for about 10 years.”

Appellant contends the upper term sentence must be reversed because it was based on facts not admitted by him or found true by the jury.

In Apprendi v. New Jersey (2000) 530 U.S. 466, 490, the United States Supreme Court applied the Sixth Amendment and held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. In Cunningham v. California, supra, 127 S.Ct. at page 871, the high court held that California’s determinate sentencing law violated a defendant’s federal right to trial because it assigned to the trial judge, not the jury, the authority to make factual findings that subject the defendant to the possibility of an upper term.

“The United States Supreme Court has recognized two exceptions to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the [statutory] maximum authorized by the jury’s verdict. [Citation.] Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. [Citations.]” (People v. Sandoval (2007) 41 Cal.4th 835, 836-837.) Moreover, “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional [factfinding] engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to a jury trial.” (People v. Black (2007) 41 Cal.4th 799, 813.)

Here, the trial court properly relied on at least one aggravating circumstance that entitled it to impose the upper term sentence: the existence of a felony conviction in addition to the one alleged and admitted as a strike. Appellant argues that reliance on this factor violated Cunningham because the trial court did not rely simply on the prior conviction. Instead, according to appellant, the trial court imposed the upper term because it viewed the facts underlying that conviction as aggravated. We, of course, are required to presume that the conviction and sentence are proper and to draw all reasonable inferences in support of the judgment. (People v. Mays (2007) 148 Cal.App.4th 13, 33.) While appellant’s interpretation of the sentencing transcript is not unreasonable, we believe the court viewed the conviction and the facts underlying that conviction as separate aggravating circumstances supporting imposition of the upper term sentence. Under this interpretation, at least one aggravating circumstance was established by means that independently satisfied the requirements of the Sixth Amendment and rendered appellant eligible for the upper term. Therefore, we conclude the court properly sentenced him to the upper term.

Because we conclude that the court properly imposed the aggravated term, we need not address appellant’s argument that the Cunningham waiver he entered was invalid.

Disposition

The judgment of conviction and sentence are affirmed.

We concur. JONES, P.J. STEVENS, J.

Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

People v. Mendoza

California Court of Appeals, First District, Fifth Division
Mar 10, 2008
No. A117797 (Cal. Ct. App. Mar. 10, 2008)
Case details for

People v. Mendoza

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ALBERTO MENDOZA, Defendant and…

Court:California Court of Appeals, First District, Fifth Division

Date published: Mar 10, 2008

Citations

No. A117797 (Cal. Ct. App. Mar. 10, 2008)