P. v. Aguirre
Filed 12/24/09 P. v. Aguirre CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. ISAAC PAUL AGUIRRE, Defendant and Appellant. | E048484 (Super.Ct.No. BLF004017) OPINION |
APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge. Affirmed.
Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant Isaac Paul Aguirre (defendant) and co-defendant Gilberto Garcia Martinez burglarized two residences in the Wind River Resort on the Colorado River, near Blythe. They also stole vehicles located on the two properties and various other items.
Defendant was convicted by jury of first degree residential burglary (Pen. Code, 459; counts 1 and 2);[1]unlawful taking or driving a vehicle, a Honda quad (Veh. Code, 10851, subd. (a); count 3); unlawful taking or driving a vehicle, a Jeep (Veh. Code, 10851, subd. (a); count 4); unlawful taking or driving a vehicle, a boat trailer (Veh. Code, 10851, subd. (a); count 5); grand theft of a Craftsman air compressor ( 487, subd. (a); count 6); and grand theft of a firearm ( 487, subd. (d)(2); count 7). In a bifurcated trial, the court found true a prior prison term allegation. ( 667.5, subd. (b).) The trial court sentenced defendant to an aggregate prison term of nine years four months.
Defendant appealed his conviction and this court, in an unpublished opinion entered on May 12, 2008 (case No. E041835), reversed the judgment as follows: Defendants conviction for grand theft of the air compressor (count 6) was reduced to a conviction for petty theft ( 490), with all other convictions affirmed; defendants consecutive sentence on count 5 (unlawful taking or driving the boat trailer) was reversed under section 654, with directions the trial court ordered that defendants sentence on count 5 stayed; and defendants upper term sentences for burglary (counts 1 and 2[2]) were reversed under Cunningham[3]and remanded for resentencing on counts 1 and 2.
This court concluded there was Cunningham error on the ground the trial court imposed the upper term on count 1 based upon factual findings that the evidence showed planning and sophistication, and the takings and attempted takings were of great value.
On remand, the trial court resentenced defendant on September 12, 2008, in accordance with this courts decision and instructions for resentencing on counts 1, 2, 5, and 6. As to count 1, the trial court reimposed the upper term of six years based on defendants criminal record. The trial court reimposed the middle term on count 2. The sentences on counts 2, 3, and 4 remained consecutive, as originally imposed.
With regard to count 5, the court imposed one-third the middle term, but stayed the sentence under section 654, as instructed by this court. The trial court imposed a stayed sentence of six months in jail for count 6, which was reduced to misdemeanor theft, as instructed by this court. ( 19, 490.1, subd. (a).) Defendants aggregate sentence was reduced to eight years eight months.
We do not elaborate on the facts in this case since they are stated in our previous decision (case No. E041835) and are not relevant to this appeal since defendants notice of appeal only raises the issue of resentencing.
On December 11, 2008, defendant appealed judgment entered following resentencing on September 12, 2008, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and requesting this court to undertake a review of the entire record, including judicially noticing the record in defendants previous appeal, case No. E041835. We granted judicial notice of the record in case No. E041835, as well as case No. E046819, previously judicially noticed in case No. E041835.
The primary issue on appeal is the propriety of the trial courts reimposition of the upper term sentence for defendants count 1 burglary conviction. Defendant suggests the trial court might not have stated sufficient reasons for imposing the upper term on count 1. In particular, defendant states the trial courts reliance on defendants lack of remorse may not have been a valid basis for imposing the upper term.
During the initial sentencing hearing on November 20, 2006, the court noted that defendant went to prison for sections 10851 and 11373 convictions in 1992, for a section 11378 conviction in 1999, and for a couple of burglaries in 2004. In imposing the upper term on count 1, the trial court stated it was imposing the upper term because of the sophistication of the crime and the great value of the property taken.
During resentencing, following remand from this court, the trial court stated it was imposing the upper term on count 1 based on defendants prior criminal record, which included a prior conviction for the same or similar automobile theft offense, five violations of probation, a parole violation, lack of remorse, and denial of involvement. The court added that it was imposing the upper term primarily because of defendants prior criminal record. Therefore, regardless of whether the courts reliance on defendants lack of remorse was a sufficient basis for imposing the upper term, the trial courts reliance primarily on defendants prior criminal record was more than sufficient to impose an upper term on count 1. Based on the record, there does not appear to be any sentencing error.
We have now concluded our independent review of the record under People v. Kelly (2006) 40 Cal.4th 106, and find no arguable issues.
3. Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Gaut
J.
We concur:
s/Richli
Acting P. J.
s/Miller
J.
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[1]Unless otherwise noted, all statutory references are to the Penal Code.
[2] We note the trial court actually imposed the midterm on count 2, not the upper term.
