P. v. English

Filed 1/9/07 P. v. English CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 PEOPLE,

Plaintiff and Respondent,

CHARLES DAVID ENGLISH,

Defendant and Appellant.

F049654

(Super. Ct. No. 05C3624)

OPINION

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. Peter M. Schultz, Judge.

Burton R. Loehr, 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.

-ooOoo-

Charles David English's live-in girlfriend lost consciousness after he slapped and punched her face, threw her against the wall and pushed her to the floor, and choked and kicked her. At a bifurcated trial, he admitted three prison term prior allegations (§ 667.5, subd. (b)^{^[1]}), after which a jury found him guilty of assault by means of force likely to produce great bodily injury and found an infliction of great bodily injury allegation true (§§ 245, subd. (a)(1), 12022.7, subd. (a)). The court imposed an aggregate 10-year sentence (the 4-year upper term on the assault, a consecutive 3-year term on the great bodily injury enhancement, and 3 consecutive 1-year terms on the prison term prior enhancements).

ISSUES ON APPEAL

First, English argues that the denial of his motion for a continuance on the day before trial was an abuse of discretion and a violation of his rights to counsel and due process. Second, he argues that the imposition of the aggravated term without a jury finding on the circumstances in aggravation was a violation of his rights to due process and jury trial. We will affirm the judgment.

FACTUAL SUMMARY

A police officer responding to a call about â€

Description	Defendant's live in girlfriend lost consciousness after he slapped and punched her face, threw her against the wall and pushed her to the floor, and choked and kicked her. At a bifurcated trial, he admitted three prison term prior allegations (S 667.5, subd. (b)), after which a jury found him guilty of assault by means of force likely to produce great bodily injury and found an infliction of great bodily injury allegation true (SS 245, subd. (a)(1), 12022.7, subd. (a)). The court imposed an aggregate 10-year sentence (the 4-year upper term on the assault, a consecutive 3 year term on the great bodily injury enhancement, and 3 consecutive 1 year terms on the prison term prior enhancements). The judgment is affirmed.
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