P. v. Zuniga 8/10/07 CA3

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State: California

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

Docket No: C053605

Case Date: 10/10/2007

Preview:Filed 8/10/07

P. v. Zuniga CA3

NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, Plaintiff and Respondent, C053605 v. EDWARD DOMINIC ZUNIGA, Defendant and Appellant. (Super. Ct. No. CM021865)

The trial court terminated probation and sentenced defendant Edward Dominic Zuniga to state prison for the upper term of three years after he admitted his second violation on his 2005 grant of probation for possession of a short-barreled shotgun. On appeal, defendant contends (1) the court's imposition of the upper term without a jury finding of aggravating factors beyond a reasonable doubt violated his Sixth and Fourteenth Amendment rights under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Cunningham v.

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California (2007) 549 U.S. ___ [127 S.Ct. 856; 166 L.Ed.2d 856] (Cunningham), (2) the court erred in failing to state the reasons for imposing the upper term, (3) any failure to object at sentencing to the court's failure to state such reasons was the result of ineffective assistance of counsel, and (4) trial counsel's failure to argue for the low or middle term constituted ineffective assistance of counsel. the judgment. FACTUAL AND PROCEDURAL BACKGROUND1 A. The Short-Barreled Shotgun Offense On October 6, 2004, police responded to a report of a struggle between defendant and his girlfriend over a gun that resulted in an accidental shooting injury. Several guns, We shall affirm

including a short-barreled shotgun were discovered; defendant admitted the items found were his. Defendant was charged with possession of a short-barreled shotgun, a felony, in violation of Penal Code section 12020, subdivision (a)(1)2 (count 1) and possession of property with the serial number removed, a misdemeanor, in violation of section 537e, subdivision (a)(1) (count 2).

1 Given defendant's plea and stipulation to a factual basis, the

facts are briefly summarized from the probation report.
2 Hereafter, undesignated statutory references are to the Penal

Code.

2

On January 18, 2005, defendant entered a negotiated plea of no contest to count 1 in exchange for dismissal of count 2 with a Harvey3 waiver and no immediate state prison. On March 28, 2005, noting defendant's suitability for probation was "marginal," the court suspended imposition of sentence, placed defendant on three years formal probation with specified terms and conditions, ordered that he serve 120 days in jail (minus custody credits) and assessed various fees and fines. B. The Probation Violations On August 25, 2005, the probation department filed a petition alleging defendant violated the terms and conditions of his probation by failing to report as required. On December 7, 2005, the probation department filed a first amended petition adding an allegation that defendant was found to be under the influence of alcohol in violation of probation. On December 19, 2005, defendant admitted he violated probation as alleged. Pursuant to the court's order, sentencing

was suspended and defendant was temporarily placed in a diagnostic facility for a substance abuse and psychological evaluation. On May 4, 2006, the court reinstated probation and ordered defendant to immediately contact Alcohol and Drug Services (ADS).

3 People v. Harvey (1979) 25 Cal.3d 754 (Harvey).

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On June 2, 2006, the probation department filed a second petition alleging defendant again violated probation by failing to report as required.4 On July 27, 2006, defendant admitted the alleged probation violation. On August 24, 2006, after reading and considering "the probation report in this case . . . and the supplemental report after the violation of probation," and entertaining argument from counsel, the court ruled as follows: probation is terminated unsuccessfully. sentenced to the three-year upper term. "[A]s to Count [1], [Defendant] is

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