P. v. Houston

Filed 7/19/06 P. v. Houston CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Martin Herscovitz, Judge. Affirmed.

Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

James Houston appeals from judgment entered following resentencing wherein he was ordered to serve a total of eight years in prison. He previously had been convicted by a jury of petty theft with a prior (Pen. Code, § 666) and found to have suffered five prior convictions within the meaning of Penal Code section 667.5, subdivision (b), including the conviction alleged pursuant to Penal Code section 666. In an unpublished opinion filed February 24, 2005 (B175646), this court reversed appellant's sentence and remanded the matter to the trial court to conduct a new sentencing determination pursuant to Blakely v. Washington (2004) 542 U.S. 296.) After resentencing, appellant now contends he was denied his federal constitutional right to a jury trial when he was sentenced to an upper term based on facts beyond those found true by the jury. Appellant recognizes that this court is bound to follow the holding of People v. Black (2005) 35 Cal.4th 1238, but asserts he is making this argument to preserve it for federal review. For reasons stated in the opinion, we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

At resentencing, the trial court noted the California Supreme Court had recently held Blakely did not apply to California's sentencing scheme. It then resentenced appellant to eight years in prison, consisting of the upper term of three years, plus five 1-year enhancements. In finding that the aggravating factors again outweighed the mitigating factors, the court observed appellant had been convicted in 1982 of selling marijuana, in 1984 of burglary, in 1987 of trafficking in morphine, and in 1994 of shoplifting. He had over ten theft convictions and in 1992 violated parole.

DISCUSSION

Appellant contends he was improperly sentenced to the upper term in violation of his federal constitutional right to a jury trial. (Blakely v. Washington, supra, 542 U.S. 296.) He claims the trial court selected the upper term based on numerous factual findings that were not made by the jury.

In People v. Black, supra, 35 Cal.4th 1238, 1254, the California Supreme Court held that Blakely does not invalidate California's upper-term sentencing procedure. Appellant's argument raises no issues not resolved in Black.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P.J.

WILLHITE, J.

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