P. v. Speakes 1/17/07 CA1/1

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A113668

Case Date: 03/28/2007

Preview:Filed 1/17/07 P. v. Speakes CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. ALLEN WAYNE SPEAKES, Defendant and Appellant. (San Francisco County Super. Ct. No. 195127) A113668

Allen Wayne Speakes appeals a judgment convicting him of first-degree burglary in violation of Penal Code section 459.1 He contends the trial court erred in imposing the upper term sentence for this offense, because it improperly considered aggravating factors in violation of his Sixth Amendment right to a jury trial, as articulated in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). As discussed below, we find no prejudicial error and affirm. BACKGROUND On the evening of March 13, 2005, Paul Kangas and his 90-year-old mother were at home in their second-floor apartment. While his mother slept, Kangas worked at his computer. Hearing a noise, he got up to investigate. Upon entering the kitchen he saw a stranger--defendant--taking coins out of a box and putting them into his pockets.

Further statutory references are to the Penal Code. References to rules are to the California Rules of Court.

1

Kangas told defendant that he, Kangas, was a "detective,"2 and that defendant was under arrest and that police were "on their way." Defendant jumped out an open window onto a fire escape and descended into the backyard of the residential building. Grabbing a broom handle and a cordless telephone, Kangas went out his front door. Defendant, exiting through the ground-floor garage, ran past Kangas into the street. He turned and threw a metal object at Kangas as the 63 year old gave chase. The object missed Kangas, who then attempted unsuccessfully to make an emergency 911 call with his cordless telephone. Meanwhile defendant conveniently dropped the cellular telephone he had taken from Kangas' apartment. Kangas picked it up and completed the emergency call. Moments later, a police officer on a motorcycle arrived on the scene, and stopped and detained defendant. As Kangas caught up and approached the two, defendant said: "I should have bashed your . . . head in the kitchen when I had the chance." Officers later found property belonging to Kangas in defendant's possession.3 A subsequently filed information charged defendant with first-degree burglary.4 (

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