People v. Cox CA3

Filed 3/27/14 P. v. Cox CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yuba) ----

THE PEOPLE, C074128

Plaintiff and Respondent, (Super. Ct. No. CRF12575)

v.

ALVIN JEROME COX,

Defendant and Appellant.

Defendant Alvin Jerome Cox pled no contest to second degree burglary and was sentenced to the upper term of three years in state prison. On appeal, defendant contends the selection of the upper term was an abuse of discretion. We affirm. BACKGROUND On October 5, 2012, defendant and two others walked into a convenience store at a gas station. One of the men distracted the cashier at one cash register while the others opened the drawer of a second cash register. After the three men left the store, the

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cashier told her manager what happened. They checked the second register and found approximately $110 missing from the drawer. They contacted the county sheriff. As they waited for deputies to arrive, the manager watched the three men walk toward the gas pumps. Two men got into a gold sport utility vehicle, the third walked away. Deputies arrived and followed the sport utility vehicle. A high-speed chase ensued but was stopped when it became too dangerous. Defendant and the others were later detained and identified by the convenience store employees as the men who stole the money from the store. Defendant was charged with felony evading a peace officer, petty theft with a prior conviction for petty theft, and second degree burglary. Defendant later pled no contest to second degree burglary. In exchange for his plea, the remaining charges were dismissed. As part of his plea agreement, defendant acknowledged he could face a maximum term of three years in state prison. He also acknowledged he was not eligible for probation absent unusual circumstances. At sentencing, counsel for defendant argued the trial court should impose the middle term: “Your Honor, in this matter, [defendant] does have an extensive criminal history. However, in this case that’s before the Court, the amount of money in question is $110. We believe, under the totality of the circumstances, that the mid term is warranted, and we’ll submit it to the Court.” The trial court was not persuaded: “I counted 15 prior felony convictions going back to 1980. He also has numerous violations of probation and parole. He’s committed many theft offenses. This was a brazen act. This was a significant act. He has theft offenses in ‘97, ‘98, ‘99, 2003, all out of Alameda County, where he went to prison. In 2005, he got six years’ prison out of Sacramento County for 459/2d, two counts, and a 666 apparently as a misdemeanor. But he went to prison, and there’s another prison term, 16 months consecutive in ‘06, Placer County, two counts of 459/2nd. This appears to be a consistent pattern of criminality for Defendant.