P. v. Brown

Filed 7/31/06 P. v. Brown CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. John I. Kelly, Judge.

William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Raymond W. Bryson contends the trial court unconstitutionally imposed an upper-term sentence by considering aggravating factors not considered by a jury. We will affirm the judgment.

On December 24, 2004, Bakersfield Police Officer Chris Ward observed Bryson on the street speaking to the passengers in a GMC Yukon. From about five feet away, the officer heard Bryson yell and then throw a forward punch into the vehicle. Officer Ward instructed Bryson to step away, but he would not and continued speaking to the occupants of the Yukon.

Officer Ward grabbed Bryson's left wrist and attempted to place him in a control hold. Bryson pulled away and the officer shot pepper spray into Bryson's face. Bryson fled to the street and the officer extended his collapsible police baton and ordered Bryson to the ground. Bryson instead approached Officer Ward and the officer hit him twice on the leg. Bryson then grabbed the officer and placed him in a bear hug. The officer again struck Bryson with the baton, at which point Bryson unsuccessfully tried to pull it away from the officer. Five civilians came to the officer's rescue and subdued Bryson. Officer Ward sustained injury to his forehead and shin, lacerations on his knee, and a partial black eye.

Another officer soon arrived and took Bryson into custody. He found a broken methamphetamine pipe, a small usable amount of suspected methamphetamine, and a bullet in Bryson's right front pocket.

A jury convicted Bryson of resisting an executive officer by the use of force or fear (Pen. Code, § 69), attempted removal of a non-firearm weapon from a peace officer (Pen. Code, §§ 664/148, subd. (b)), and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). The trial court sentenced Bryson to the upper prison term of three years for resisting the officer, a stayed upper term of 18 months for the attempted removal of his weapon, and a consecutive eight-month subordinate term (one-third the two-year middle term) for the narcotics offense.

DISCUSSION

Bryson contends the trial court violated his constitutional right to allow a jury to determine the factors in aggravation used in imposing the upper term for resisting an executive officer by the use of force or fear. (Blakely v. Washington (2004) 542 U.S. 296.) In sentencing Bryson to the upper term, the trial court stated it agreed with the probation department's recommendation and that it found Bryson's criminal history, while only consisting of misdemeanors, significant.

Bryson candidly and correctly acknowledges that â€