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People v. Rocha

California Court of Appeals, Fifth District
Mar 19, 2008
No. F052517 (Cal. Ct. App. Mar. 19, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. SALVADOR PEREZ ROCHA, Defendant and Appellant. F052517 California Court of Appeal, Fifth District March 19, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Kings County. Louis F. Bissig, Judge, Super. Ct. Nos. 06CM4332 & 06CM5164B

Hayes H. Gable III, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian G. Smiley and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT

Before Cornell, Acting P.J., Hill, J. and Kane, J.

INTRODUCTION

The trial court imposed the upper term of imprisonment for appellant Salvador Perez Rocha’s felony conviction of assault with a firearm. Rocha contends imposition of the upper term violates his constitutional rights. We disagree and will affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Rocha’s one contention on appeal is a challenge to his sentence; therefore, we provide only a brief recitation of facts relevant to this appeal.

On February 20, 2007, in Kern County Superior Court case No. 06CM4332, Rocha pled no contest to the charge of assault with a firearm, and in case No. 06CM5164B Rocha pled no contest to conspiracy to commit auto theft. In exchange, numerous other charges in the two cases were dismissed.

On March 20, 2007, the trial court sentenced Rocha to the upper term of four years in state prison on the assault with a firearm charge and to a consecutive eight-month term on the conspiracy to commit auto theft charge.

DISCUSSION

Rocha’s sole contention is that imposition of the upper term violated his constitutional right to a jury trial and due process. He concedes that the California Supreme Court has ruled against him on this issue, but raises it to preserve the issue for federal review. The People contend Rocha cannot challenge the validity of his sentence without first obtaining a certificate of probable cause and, alternatively, imposition of the upper term is constitutionally valid.

The People are correct that Rocha first must obtain a certificate of probable cause. A defendant cannot appeal a plea of no contest unless a certificate of probable cause is obtained. (People v. Young (2000) 77 Cal.App.4th 827, 829.) By claiming that his sentence is unconstitutional, Rocha is effectively attacking the validity of the plea. (Id. at p. 832.)

Regardless, the imposition of the upper term is constitutional. In Blakely v. Washington (2004) 542 U.S. 296, 301, the United states Supreme Court held that 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 or admitted by the defendant. Recently, in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856], the United States Supreme Court clarified that “In accord with Blakely …the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum. [Citation.]” (Id. at p. ___ [127 S.Ct. at p. 868].) An upper term constitutionally may be imposed if it is based upon facts admitted by the defendant, facts reflected in the jury’s verdict, or a prior conviction. (Blakely, at p. 303.)

A single aggravating factor is sufficient to support imposition of an upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Additionally, “if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (People v. Black (2007) 41 Cal.4th 799, 813.)

In imposing the upper term here, the trial court found several aggravating factors true, including Rocha’s prior criminal record. Rocha had numerous prior convictions of increasing seriousness, dating from January 1993, including convictions for receiving stolen property, assault with a deadly weapon, evading a peace officer, and spousal abuse. Further, Rocha had his probation revoked several times in the past. Additionally, Rocha committed the conspiracy to commit vehicle theft offense while out on bail from the current assault with a firearm offense.

Rocha’s prior criminal record constitutes one aggravating circumstance established in accordance with constitutional requirements; thus, the upper term is the statutory maximum that can be imposed by the trial court. (People v. Black, supra, 41 Cal.4th at p. 813.) Therefore, under the holdings of Blakely, Cunningham, and Black, imposition of the upper term did not violate Rocha’s constitutional rights.

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Rocha

California Court of Appeals, Fifth District
Mar 19, 2008
No. F052517 (Cal. Ct. App. Mar. 19, 2008)
Case details for

People v. Rocha

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SALVADOR PEREZ ROCHA, Defendant…

Court:California Court of Appeals, Fifth District

Date published: Mar 19, 2008

Citations

No. F052517 (Cal. Ct. App. Mar. 19, 2008)