Fear Not Law Articles: P. v. Galicia

P. v. Galicia

Filed 6/25/07 P. v. Galicia CA2/6

Opinion following remand from U.S. Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

SATURNINO GALICIA,

Defendant and Appellant.

2d Crim. No. B178857

(Super. Ct. No. 2003019514)

(Ventura County)

In a prior opinion, we affirmed the conviction of Saturnino Galicia for forcible rape. (Pen. Code, 261, subd. (a)(2).) He contended that the trial court erred by admitting prejudicial evidence of prior sexual offenses and acts of domestic violence. Galicia also contended that his upper term sentence of eight years in state prison for the offense violated his Sixth Amendment right to trial by jury because it "'. . . increases the penalty for a crime beyond the prescribed statutory maximum . . .'" based on aggravating facts that were not determined by the jury. (Blakely v. Washington (2004) 542 U.S. 296, 301; Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) We rejected this latter contention based on the opinion of our Supreme Court in People v. Black (2005) 35 Cal.4th 1238, 1244, 1253-1254, 1261, 1264.) Thereafter, the United States Supreme Court granted Galicia's petition for writ of certiorari, vacated the judgment, and

remanded the case for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] which overruled Black, in part.[1]

In Cunningham, the United States Supreme Court invalidated the portion of California's Determinate Sentencing Law that permits a judge to impose an upper term sentence based on aggravating sentencing factors, other than a prior conviction, that are not determined by a jury . (Cunningham v. California, supra, 127 S.C. at pp. 860, 863-864, 868.) Cunningham, Blakely, and Apprendi all recognize an exception to the rule requiring jury trials for the fact of a prior conviction. (Cunningham, supra, at p. 860; Blakely v. Washington, supra, 542 U.S. at p. 301; Apprendi v. New Jersey, supra, 530 U.S. at pp. 488, 490; see also Almendarez-Torres v. United States (1998) 523 U.S. 224, 243-244, 246.) Whether the prior conviction exception is properly interpreted to apply not only to the fact of a prior conviction but also to other issues relating to the defendant's recidivism is currently pending before the California Supreme Court. (People v. Towne, review granted July 24, 2007, supp. briefing ordered Feb. 7, 2007, S125677; People v. Hernandez, review granted Feb. 7, 2007, S148974; People v. Pardo, review granted Feb. 7, 2007, S148914.)

In the instant case, however, the trial court imposed the upper term sentence solely on the basis of Galicia's prior felony conviction. The court stated that, although the probation report listed other factors in aggravation, "because of the flux in the law right now" (October 1, 2004), the court was not relying on any factor in aggravation other than the existence of a prior conviction. Accordingly, there was no error under Cunningham regarding the imposition of an upper term sentence on Galicia.

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Edward F. Brodie, Judge

Superior Court County of Ventura

______________________________

Gilbert W. Lentz, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson, Supervising Deputy Attorney General, Michael W. Whitaker, Deputy Attorney General, for Plaintiff and Respondent.

[1]We take judicial notice of appellant's petition for writ of certiorari, and note that the only issue addressed therein is "Whether the California Supreme Court's decision in People v. Black, 35 Cal.4th 1238 (2005) [California's Determinate Sentencing Law that allows the judge to impose upper term sentences does not violate the rule of Blakely v. Washington 542 U.S. 296 . . . (2004)] conflicts with this Court's decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely."

Description	In a prior opinion, Court affirmed the conviction of Saturnino Galicia for forcible rape. (Pen. Code, 261, subd. (a)(2).) He contended that the trial court erred by admitting prejudicial evidence of prior sexual offenses and acts of domestic violence. Galicia also contended that his upper term sentence of eight years in state prison for the offense violated his Sixth Amendment right to trial by jury because it "'. . . increases the penalty for a crime beyond the prescribed statutory maximum . . .'" based on aggravating facts that were not determined by the jury. (Blakely v. Washington (2004) 542 U.S. 296, 301; Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) We rejected this latter contention based on the opinion of our Supreme Court in People v. Black (2005) 35 Cal.4th 1238, 1244, 1253-1254, 1261, 1264.) Thereafter, the United States Supreme Court granted Galicia's petition for writ of certiorari, vacated the judgment, and remanded the case for further consideration in light of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] which overruled Black, in part. In the instant case, however, the trial court imposed the upper term sentence solely on the basis of Galicia's prior felony conviction. The judgment is affirmed.
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