P. v. Yang





















Filed 2/5/13 P. v. Yang CA2/5











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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
FIVE




>

THE PEOPLE, Plaintiff and Respondent, v. THAI YANG, Defendant and Appellant.

B241802 (Los Angeles County Super. Ct. No. NA091097)

APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Mark C. Kim, Judge.
Affirmed.

Eileen M.
Rice, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Steven E. Mercer, Deputy Attorney
General, for Plaintiff and Respondent.







A jury
convicted defendant, Thai Yang, of second
degree burglary of a vehicle. (Pen.
Code, § 459.) Defendant admitted that
three section 667.5, subdivision (b) prior separate prison term allegations
(case Nos. NA052264, NA033117, NA069839) were true. He also admitted that one sections 667,
subdivisions (b) through (i) and 1170.12 prior serious felony conviction
allegation (case No. NA03317) was true.
Defendant was sentenced to nine years in state prison. (§ 1170, subd. (h)(3).) The trial court imposed the high term for the
burglary. In doing so, the trial court
stated, “The record should reflect that the court is imposing the high term on
count one based on the fact that the defendant was and has been multiple
convicted felon, went to prison three separate times, last time being 2006 for
a term of 32 months.”

Defendant
contends the trial court’s reliance on his prior record to both impose the high
term and enhance his sentence under section 667.5, subdivision (b), constituted
an improper dual use of facts. (§ 1170,
subd. (b); Cal. Rules of Court, rule 4.420(c); People v. McFearson (2008) 168 Cal.App.4th 388, 395; 3 Witkin, Cal.
Criminal Law (4th ed. 2012) Punishment, § 404, p. 624.) Defendant forfeited this assertion by failing
to raise it in the trial court. (>People v. Murphy (2001) 25 Cal.4th 136,
156; People v. Scott (1994) 9 Cal.4th
331, 350-353; see People v. Neal (1993)
19 Cal.App.4th 1114, 1117-1124.) Defense
counsel had a meaningful opportunity to object when the trial court stated its
reasons for imposing the high term. (See
People v. Gonzalez (2003) 31 Cal.4th
745, 748, 751-755; People v. Zuniga (1996)
46 Cal.App.4th 81, 84.)

Even if the
issue were properly before us, we would not find it reasonably probable a more
favorable sentence would have been imposed absent the error. (People
v. Davis (1995) 10 Cal.4th 463, 552; People
v. Avalos (1984) 37 Cal.3d 216, 233.)
The probation officer’s report notes:
“The defendant seems to be well acquainted with the criminal court
system as his record reflects several convictions for felony offenses and
previous detention in facilities on the state level. The present matter indicates a pattern of
delinquent behavior and blatant disregard for the law. [Defendant’s] actions suggest he has not
learned from prior court interactions which includes involvement in serious
offense. In addition, the defendant also
has ties to criminal street gang
known for their violent and destructive behavior in the community. Clearly, there are concerns regarding
potential risk to the community.”

Moreover, according to the
probation officer’s report, the crime left the victim and his girlfriend very
fearful and contemplating securing a protective order. Defendant was tampering with the victim’s
Honda. As the victim approached,
defendant got into a Toyota and drove away.
Defendant then drove past the victim’s residence several times. On the second occasion, defendant “flipped
off” the victim. On the third occasion,
defendant got out of his Toyota.
Defendant approached the victim’s residence. The victim’s girlfriend and young children
resided in the home. Further,
defendant’s prior convictions were of increasing seriousness. In 1993, as a juvenile, he committed a petty
theft and was placed home on probation.
In 1997, he committed robbery and was sentenced to two years in state
prison. In 2002, he committed a burglary
and was sentenced to four years in state
prison. Under these circumstances,
it is not reasonably probable the trial court would impose less than the high
term. Defendant’s ineffective assistance
of counsel claim therefore also fails.
(See People v. Burbine (2003)
106 Cal.App.4th 1250, 1265-1266; People
v. Bautista (1998) 63 Cal.App.4th 865, 871.)

The
judgment is affirmed.



NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS



TURNER,
P. J.





We concur:



MOSK, J.



KRIEGLER,
J.