P. v. Merrill

Filed 12/12/08 P. v. Merrill CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant appeals from judgments entered on his pleas in two dockets. His counsel has asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.)

In Marin County Superior Court Docket No. SC151626, defendant entered a guilty plea to second degree burglary (Pen. Code,  459), a charge arising from defendant using a key to enter Peets Coffee and Tea in San Rafael and opening the safe by using a pass code (both the key and pass code were obtained by defendant due to his employment by Peets), and taking $11,160.31. Defendant also admitted an allegation that he had previously suffered three prior felony convictions (Pen. Code,  1203, subd. (e)(4).) The trial court found unusual circumstances and placed defendant on probation, with conditions (among others) that he serve eight months in county jail and complete a residential drug treatment program at Delancey Street. Defendant failed to enter Delancey Street and committed new offenses, resulting in a petition to violate his probation and a new criminal complaint being filed.

That new criminal complaint, Docket No. SC 156912, alleged four robberies (Pen. Code,  211), as well as possession of heroin (Health & Saf. Code,  11350) and three misdemeanor offenses. These charges arose from an incident wherein defendant and another individual robbed the Peets Coffee and Tea in Corte Madera. Several juveniles and employees were present in the store when the robbery occurred, leading to the multiple counts of robbery being alleged. Pursuant to a negotiated disposition, defendant pleaded guilty to one count of robbery (the remaining charges were dismissed), and admitted a probation violation in Docket No. SC151626. The sentence to be imposed was left open to the court.

On Docket No. SC156912, the court imposed the aggravated term of five years, citing the following circumstances in aggravation: (1) that the crime involved a taking of great monetary value, (2) that the crime involved vulnerable victims, (3) that defendant took advantage of his past position of trust as a former employee of Peets, in that he used his knowledge of the operations of the store in planning and committing the robbery, (4) that defendants prior convictions were of increasing seriousness and were occurring more frequently, (5) that defendant was on two grants of probation when he committed the offense, and (6) that defendant performed poorly on probation. The court also noted that four felony charges and three misdemeanors were dismissed as part of the negotiated disposition in the case. On Docket No. SC151626, the court reinstated probation and ordered defendant to serve a term of four months (to be served in the Department of Corrections), consecutive to the prison term imposed on the other docket; the court ordered that his probation on that docket would terminate unsuccessfully upon completion of his state prison sentence. This timely appeal followed.

Defendant was advised of his constitutional rights prior to the entry of his pleas, as well as the consequences of his pleas. The court found his pleas to be free and voluntary, and that there was a factual basis for both pleas. No error appears in the entry of his pleas, or in the sentencing proceedings.^[1] Defendant was represented by counsel at all times. There are no meritorious issues to be argued on appeal.

The judgment is affirmed.

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Sepulveda, J.

We concur:

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Ruvolo, P. J.

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Rivera, J.

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^[1]As counsel on appeal notes, on Docket No. SC151626, defendant waived his Blakely rights. On Docket No. SC156912, defense counsel objected (in his sentencing brief and at the sentencing hearing) to the courts imposition of the aggravated term, pursuant to Cunningham, Blakely and Apprendi. (Blakely v. Washington (2004) 542 U.S. 296, Apprendi v. New Jersey (2000) 530 U.S. 466; Cunningham v. California(2007) 549 U.S. 270.) However, as the trial court responded, Penal Code section 1170, subdivision (b) was amended, effective March 30, 2007, resolving those issues as they applied to Californias determinate sentencing law; the crimes alleged in that docket occurred on December 8, 2007. Additionally, the trial court relied upon recidivist factors in selecting the aggravated term, which alone would have justified imposition of the aggravated term and which did not have to be proven to a jury. (People v. Black (2007) 41 Cal.4th 799, 815-818.) Finally, a written waiver of defendants right to a jury trial on the sentencing factors (Blakely/Apprendi Waiver) was also filed on Docket No. SC156912.