Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County No. FSB703482. Stephan G. Saleson, Judge.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr., Karl T. Terp and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P. J.
A jury convicted defendant and appellant Jacob Lee Tellis of evading a police officer (Veh. Code, § 2800.2, subd. (a), count 1), unlawfully taking a motor vehicle (Veh. Code, § 10851, count 2), and receiving stolen property (Pen. Code, § 496d, subd. (a), count 3). The jury also found true the allegations that defendant had served nine prior prison terms (Pen. Code, § 667.5, subd. (b)). The trial court sentenced defendant to a total term of 13 years eight months in state prison, which consisted of the upper term of four years on count 2, a consecutive eight-month term on count 1, a consecutive one-month term on count 3, stayed under Penal Code section 654, plus consecutive one-year terms on each of the nine prison priors.
On appeal, defendant contends: 1) There was insufficient evidence to support the court’s finding that he was in fact the person who had suffered the nine prior prison terms; and 2) the court improperly made dual use of defendant’s prior convictions to impose the aggravated term on count 2 and the prison prior enhancements. We affirm.
FACTUAL BACKGROUND
Because defendant’s issues stem from his sentence, we will summarize the evidence offered at the time of his sentencing:
In a bifurcated proceeding, the jury found that defendant had suffered nine prior convictions. Before the proceeding, the court examined evidence and heard arguments of counsel regarding the issue of whether defendant was the subject of the certified court documents showing the nine prior convictions. Defense counsel argued that the evidence did not prove defendant was the same person who suffered the prior convictions, since the court documents admitted into evidence did not include photographs or recent fingerprints of defendant to compare to fingerprints that may have been in the other documents. Defendant’s full name and date of birth appeared on the certified documents which the court considered. Based on a thorough review of all the documents in each of the exhibits, the court found, beyond a reasonable doubt, that defendant was the same person who suffered the prior convictions alleged.
ANALYSIS
I. There Was Sufficient Evidence to Support the Court’s Finding that Defendant Was the Person Whose Name Appeared on the Certified Court Documents
Defendant contends the trial court erred in finding he was the person whose name appeared on the certified court documents admitted to establish his nine prior convictions. Defendant argues that because the documents did not include any reference to photographs or fingerprints, the evidence was insufficient to show he was the person referred to in the Penal Code section 969, subdivision (b) prior prison packet. We disagree.
A. The Evidence Was Sufficient
Defendant merely repeats his argument on appeal which he made to the trial court that the Penal Code section 969, subdivision (b) packet was insufficient since there were no photographs or fingerprints indicating he was the same person who had suffered the convictions listed in the packet. Defendant cites no legal authority that photographs or fingerprints were required to prove he was the person identified in the certified court documents.
“It has long . . . been the rule in California, in the absence of countervailing evidence, that identity of person may be presumed, or inferred, from identity of name. [Citations.]” (People v. Mendoza (1986) 183 Cal.App.3d 390, 401.)
Here, there was no countervailing evidence. Furthermore, defendant’s name is sufficiently uncommon to support the presumption that absent contrary evidence, the defendant “Jacob Lee Tellis” of the case before the court was the same “Jacob Lee Tellis” who had suffered the numerous prior convictions. (People v. Brucker (1983) 148 Cal.App.3d 230, 242.) In addition, the court had not only defendant’s full name by which to identify him, but also his date of birth. Thus, we reject defendant’s contention.
II. The Court Relied upon Separate Grounds in Imposing the Upper Term and the Prior Conviction Enhancements
Defendant contends the trial court improperly made dual use of facts when it imposed both the upper term on count 2 and the prior conviction enhancements based on his nine prior convictions. We disagree.
Penal Code section 1170, subdivision (b), provides, in relevant part: “[T]he court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.”
Here, there is no indication in the record that the court relied on the fact of defendant’s nine prior prison terms as an aggravating factor in imposing the upper term. The court stated that it imposed the upper term on count 2 “strictly based on the prior record.” Although the court did not expressly state its reasons for selecting the upper term, “[a]bsent an explicit statement by the trial court to the contrary, it is presumed the court properly exercised its legal duty to consider all possible mitigating and aggravating factors in determining the appropriate sentence.” (People v. Oberreuter (1988) 204 Cal.App.3d 884, 888.) The record indicates the court gave significant consideration to defendant’s recidivism in determining his sentence. The court asserted that in making its decision, it considered the probation report, which stated that defendant’s prior convictions as an adult were numerous and of increasing seriousness. Defendant was on a grant of parole when the crime was committed, and his prior performance on probation and parole was unsatisfactory. The record showed that defendant had violated his probation and parole countless times. These factors were a proper basis for imposing the upper term.
We further note that defendant’s extensive criminal record renders his dual use of facts argument futile. The probation report shows that defendant’s criminal history dated back to 1992 and included nine felony convictions and six misdemeanor convictions. His long list of convictions was clearly not exhausted.
The imposition of the upper term and enhancements was based on separate findings. Thus, there was no improper dual use of facts.
Defendant argues that “it is not appropriate to semantically distinguish [his] ‘prior record’ from the nine prison priors the court found true.” We see no impropriety. In any case, we need not remand the case for resentencing. The record clearly establishes the aggravating factors listed in the probation report. It is inconceivable that the trial court would impose a different sentence if we were to remand for resentencing.
DISPOSITION
The judgment is affirmed.
We concur: GAUT, J., KINGL, J.