Appeal from a judgment of the Superior Court of Orange County, (Super. Ct. No. 07CF1041) M. Marc Kelly, Judge.
The opinion of the court was delivered by: Rylaarsdam, Acting P. J.
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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Jaime Miguel Morgutia, Jr. of reckless driving while evading the police (Veh. Code, § 2800.2; count 1), vandalism (Pen. Code, § 594, subd. (a)(1); count 3), and street terrorism (Pen. Code, § 186.22, subd. (a); count 4). The trial court suspended imposition of sentence and placed him on probation. Defendant appealed and we reversed the conviction on count 4, but otherwise affirmed. (People v. Morgutia (Jul. 17, 2009, G040415) [nonpub. opn.].) The prosecution subsequently chose not to retry defendant on count 4 and the court dismissed that charge.
After the probation department filed a petition alleging he violated the terms of his probation, defendant admitted the allegations. The court revoked probation and sentenced him to a three-year, eight-month state prison sentence. Defendant again appeals, contending the trial court abused its discretion by imposing the three-year upper term on count 1. In a supplemental brief, he seeks a recalculation of conduct credits under the recent amendment to Penal Code section 4019. We conclude the trial court abused its discretion by imposing the upper term on count 1 and reverse the judgment. As a result, it is unnecessary to decide the second issue.
The probation department alleged defendant was arrested for driving under the influence of alcohol while out past curfew, and he failed to satisfy his community service requirement. According to a department report, before his arrest and conviction on the underlying charges, defendant had no criminal record. The department recommended maintaining defendant on probation with an additional 90-day jail term.
Defendant admitted the petition's allegations and the prosecutor submitted on the probation department's recommended disposition. Citing the probation report's reference to defendant's numerous contacts with the police during his short stint on probation, his new tattoos, plus his after curfew drunk driving arrest and failure to perform community service, the court rejected the recommended disposition, revoked defendant's probation, and imposed sentence.
On count 1, the court imposed the three-year upper term for the following reasons: "[Y]ou have engaged in violent conduct that indicates a serious danger to society, the way you drove that car, your prior convictions as an adult are now increasing in seriousness, the fact that you willfully violated the law on probation, you were on probation when the crime was committed and your performance on probation has been poor to say the least." Noting "[t]he crimes and their objectives were predominantly independent of each other," the court sentenced defendant to a consecutive eight-month term on count 3. After issuing its sentence the court ...