People v. LaGrassa

Filed 11/23/05 P. v. Lagrassa CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER JOHN LAGRASSA, Defendant and Appellant.

B167866 (Los Angeles County Super. Ct. No. PA042860)

APPEAL from a judgment of the Superior Court of Los Angeles County. Ronald S. Coen, Judge. Affirmed.

Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Lawrence M. Daniels, Deputy Attorneys General, for Plaintiff and Respondent.

__________________

Appellant Christopher John Lagrassa appeals from a judgment entered upon his conviction by jury of petty theft in violation of Penal Code section 666.[1] Appellant admitted having suffered five prior convictions for serious felonies within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) (the three strikes law) and four prior prison terms within the meaning of section 667.5, subdivision (b). After granting the People’s motion to dismiss four prior serious felony convictions, the trial court sentenced appellant to the upper term of three years on the theft count, doubled to six years because of the remaining prior serious felony conviction, and four years for each of appellant’s prior prison terms, for a total sentence of 10 years.

Appellant’s sole contention is that the trial court violated his federal right to a jury trial and proof beyond a reasonable doubt, as articulated in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely), when it sentenced him to the upper term based upon factors in aggravation not considered by the jury and found only by the trial court based upon a preponderance of the evidence.[2]

FACTS

Since appellant’s appeal is based only on sentencing issues, we recite the evidence in the light most favorable to the judgment below. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) On December 12, 2002, appellant went to a Wal-Mart store in Panorama City. Appellant told the customer service manager he had lost his wallet, and he asked where he could find out if someone had found it. The manager told him to go to the customer service desk. At the customer service desk, appellant spoke with a clerk who told him no wallets had been turned in. Appellant then went to the restroom. A loss prevention agent, Defabian Davis (Davis), became suspicious of appellant and began following him.

Appellant next went to speak with a store greeter at the store entrance. He then picked up a duffel bag and a clear plastic bag, which had been on the floor near the entrance. Appellant took the escalator to the second floor where he took a shopping cart and put his bags inside it. Davis radioed his partner, Pierre Botnem (Botnem), and asked him to be a secondary witness pursuant to store policy.

Appellant entered the toy department and selected a Tykes toy, which was approximately two feet high. He put it in the cart on top of the duffel bag. He later entered the electronics department, selected a combination DVD/VCR player from a display, and placed it in the shopping cart. Appellant then took the escalator down to the first floor, placing his cart on the track next to the escalator. After retrieving his cart, appellant stopped in the jewelry department. He selected a gift set containing a wooden clock and a watch and placed it inside his cart.

Appellant proceeded towards the main entrance. He left his shopping cart near register No. 8 and went to speak to the cashier at register No. 7. He then walked through the checkout stations and took some paper towels from a dispenser. He returned to his cart and walked with it towards the exit. He said something to the greeter there and stepped outside the store.

Davis and Botnem stopped appellant just outside the door. They identified themselves and asked appellant to turn around and put his hands behind his back. Appellant said, “You got your merchandise back. You ought to let me go.” The agents handcuffed appellant and took him to the security office. They also contacted the police.

When questioned, appellant at one point said he had lost his wallet and did not have any money to buy things for his children. He also said that he had lost his receipt for the items. He claimed he had spoken with a cashier who told him he could leave the store if he had a receipt. Davis ascertained from the store’s computerized records that there was no record of any purchases by appellant.

DISCUSSION

In sentencing appellant, the trial court stated it had read and considered the probation report, and defense counsel acquiesced in the trial court’s use of the report for sentencing. The trial court granted the People’s motion to strike four prior serious felony convictions pursuant to section 1385. In sentencing appellant, the trial court stated it had considered the factors in aggravation and mitigation contained in the California Rules of Court. The trial court observed that, in addition to having suffered many convictions, appellant had shown unsatisfactory performance on probation and parole. The trial court noted that appellant was on probation for a misdemeanor at the time of the current offense. He was also on Proposition 36 probation, and a bench warrant had been issued in that case. Appellant had been on parole in Humboldt County and had suffered three separate parole violations in that case. The trial court found no circumstances in mitigation.

Appellant claims that the trial court’s selection of the upper term based on the factors it considered violated the rule of Apprendi and Blakely “that the jury must determine any fact exposing a defendant to greater punishment than the maximum otherwise allowable for the underlying offense.” We need not decide whether, as the People assert, appellant’s claim has been forfeited in the absence of any objection on this ground in the trial court. Appellant’s contention was rejected by the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238 (Black), which concluded that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.) The court stated, “[I]n operation and effect, the provisions of the California determinate sentence law simply authorize a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range. Therefore, the upper term is the ‘statutory maximum’ and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the principles set forth in Apprendi [, supra, 530 U.S. 466], Blakely [, supra, 542 U.S. 296], and [United States v.] Booker [(2005) 543 U.S. __ [125 S.Ct. 738]].” (Black, supra,. at p. 1254.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

ASHMANN-GERST

We concur:

____________________, P. J.

BOREN

____________________, J.

DOI TODD

[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] On December 8, 2003, appellant’s counsel filed an opening brief raising no issues and requesting our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. On April 9, 2004, appellant filed a pro se supplemental brief. On July 9, 2004, appellant’s counsel filed a brief pursuant to Blakely. On September 3, 2004, this court ordered stricken the filing of appellant’s supplemental brief, which was forwarded to appointed counsel for consideration. Counsel subsequently raised no further issues.