People v. Edwards CA4/1

Filed 9/13/23 P. v. Edwards CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D080809

Plaintiff and Respondent,

v. (Super. Ct. No. SCE392534)

TONY RAY EDWARDS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Herbert J. Exarhos, Judge. Affirmed. Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent. Defendant Tony Edwards faced a potential indeterminate sentence of 25 years to life after a jury convicted him of first degree burglary because several aggravating factors, including two prior serious felony strikes, were

found to be true beyond a reasonable doubt. At sentencing, the trial court discussed mitigating and aggravating factors and decided that, while 25 years to life was too long, Edwards should spend a significant time in prison. Without objection from defense counsel, the trial court asked the parties to work backwards to craft a sentence that would add up to the length of time it wanted. Ultimately, the trial court imposed the upper term and sentenced Edwards to 19 years and 8 months in prison. Edwards appeals the sentence because, in his view, the trial court did not comply with the requirements of Penal Code section 1170, subdivision (b)(2) for exceeding the middle term. We affirm the judgment for two reasons. First, Edwards forfeited his objection to the sentencing procedure because he raised it for the first time on appeal. Second, the trial court properly exercised its discretion under section 1170 when it found that aggravating circumstances justified the upper term. I. A jury found Edwards guilty of first degree burglary of a dwelling occupied by a person other than an accomplice. (Pen. Code, §§ 459, 460, subd. (a), 667.5, subd. (c)(21).) The trial court then oversaw a proceeding in which it found several aggravating factors to be true beyond a reasonable doubt: Edwards (1) committed the offense while out on bail; (2) committed the offense while on probation or parole; (3) committed “numerous” crimes of “increasing seriousness”; (4) served two prior prison terms; and (5) was previously convicted of two serious felony prior strikes, one in 1998 for in- store robbery (Pen. Code, § 211) and one in 2019 for arson of property (Pen. Code, § 451, subd. (d)). The two prior strikes required the trial court to impose a five-year enhancement for each prior strike and, for the current conviction, an