P. v. Aguirre
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 Defendant appealed his conviction and this court, in an unpublished opinion entered on May 12, 2008 (case No. E041835), reversed the judgment as follows: Defendants conviction for grand theft of the air compressor (count 6) was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.
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