P. v. Vu 12/9/04 CA4/3

State: California

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

Docket No: G033583

Case Date: 02/16/2005

Preview:Filed 12/9/04

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE THE PEOPLE, Plaintiff and Respondent, v. VINH QUANG VU, Defendant and Appellant. G033583 (Super. Ct. No. 03WF2265) OPINION

Appeal from a judgment of the Superior Court of Orange County, James A. Stotler, Judge. Affirmed in part, reversed in part, and remanded with directions. Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, David Delgado-Rucci and Robert M. Foster, Deputy Attorneys General, for Plaintiff and Respondent.

Vinh Quang Vu appeals from a judgment after a jury convicted him of unlawfully taking a vehicle, forgery, theft of an access card with the intent to defraud, and second degree commercial burglary. Relying on Blakely v. Washington (2004) 542 U.S. ___ [124 S.Ct. 2531] (Blakely), Vu argues the trial court erred by imposing the upper term of three years on the unlawful taking count. Specifically, he claims: (1) the jury, and not the court, should have found the aggravating circumstances supporting the upper term; (2) the court applied the incorrect standard of proof in finding the aggravating circumstances; (3) prior conviction facts should be found by the jury beyond a reasonable doubt; and (4) the jury, and not the court, should perform the "qualitative" weighing of aggravating and mitigating circumstances. We find some of his contentions have merit. FACTS Vu went to Irvine BMW and asked an employee if he could test drive a car. The employee told Vu to go to the sales department. Vu went to the service area, got inside a BMW, and drove away. A couple days later, Robyn Lee was at Kinko's making copies when she put her purse on the floor. After helping an older gentleman, she went to get money from her purse and her wallet was gone. Later that day, Vu went to Best Buy to purchase stereo equipment for a BMW, a home stereo, and a big screen television. After the sales clerk totaled the purchase price, Vu gave him a credit card with the name "Robyn" on it. The clerk asked for identification, but Vu said he did not have any. Police officers arrived and took Vu outside. Vu had Lee's credit cards and a key to a BMW. Officers found the BMW and determined it was stolen. Lee's wallet was inside the car. An information charged Vu with unlawfully taking a vehicle (Veh. Code,

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