People v. Lao CA3

Filed 8/29/23 P. v. Lao CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C098196

Plaintiff and Respondent, (Super. Ct. No. CRF2201307 )

v.

PUAPHENG LAO,

Defendant and Appellant.

After pleading no contest to receiving a stolen vehicle and admitting a prior vehicle theft conviction, defendant Puapheng Lao was sentenced to the upper term of four years. Defendant now argues the trial court erred by sentencing him based on aggravating circumstances that were improperly proven. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND In June 2022, defendant was pulled over while driving a stolen Honda Accord. He pled no contest to receiving a stolen vehicle with a prior vehicle theft conviction. At the sentencing hearing in March 2023, defendant submitted the matter based on the probation report. The trial court ultimately imposed the upper term of four years, citing defendant’s

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“[n]umerous prior felony convictions with similar conduct” as detailed in defendant’s probation report. Defendant filed a timely notice of appeal. DISCUSSION Defendant argues the trial court violated the Sixth Amendment to the United States Constitution and Penal Code1 section 1170 by sentencing him to the upper term. More specifically, defendant contends his sentence could not be imposed unless his prior felony convictions were found true beyond a reasonable doubt by a jury, stipulated to by defendant, or based on certified records. As to his constitutional claim, defendant is plainly wrong. “[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to [a] jury trial so long as one legally sufficient aggravating circumstance has been [properly] found.” (People v. Black (2007) 41 Cal.4th 799, 816.) Under the Sixth Amendment, a trial court is permitted to determine the fact of a prior conviction. (See Black, at p. 818 [“The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction”].) Accordingly, there was no constitutional error as defendant’s prior convictions were properly found by the trial court and they rendered defendant eligible for an upper term sentence. We also reject defendant’s statutory claim. Effective January 1, 2022, amended section 1170 provides that an upper term sentence must be justified by circumstances in aggravation, and that the facts underlying those circumstances must have been stipulated to by the defendant or found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. (§ 1170, subd. (b)(1), (2).) An exception to this rule authorizes the court to consider “the defendant’s prior convictions in determining sentencing based on a