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Name: People v. Govan
Case #: D049586
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 05/15/2007
Subsequent History: review granted 7/18/07, S153455

There was sufficient evidence corroborating the codefendant’s statements which implicated appellant in the burglaries. Appellant was convicted of four burglaries. He was found in a vehicle with the stolen property, and his codefendant made statements which implicated him. On appeal, he argued that there was insufficient evidence to corroborate the accomplice’s statements. The appellate court rejected the argument, finding that his presence in the vehicle which was used to commit the burglaries and the presence of the stolen property in pillowcases in the back seat of the car was sufficient corroboration. The trial court did not err when it refused to instruct the jury on the lesser related offense of receiving stolen property. Even if appellant had a right to an instruction on a lesser related offense, there was no evidence here that appellant was guilty of receiving stolen property. He denied any knowledge of the burglaries or the existence of the stolen property. The trial court erred when it sentenced appellant to the upper term on the basis of facts not found by the jury. Appellant was sentenced to the upper term based on the sophistication and planning of the offense, and the fact that his prior convictions were of increasing seriousness and that the instant offense was committed while he was on probation. On appeal, appellant contended that the trial court violated his constitutional rights under Blakely. While his appeal was pending, the U.S. Supreme Court issued its opinion in Cunningham, and supplemental briefing was received by the court. The appellate court found error under Cunningham. Cunningham clarified the narrow scope of the Almendarez-Torres exception, and rejected the notion that recidivism related factors pertaining to a defendant need not be proven to a jury. Here, none of the recidivism related aggravating factors on which the trial court relied was the mere fact of a prior conviction. Therefore, the trial court improperly relied on these factors in imposing an upper-term sentence. Since the prosecutor failed to establish beyond a reasonable doubt that the trial court would have imposed an upper term based on constitutionally permissible aggravating factors, the error required reversal.