P. v. Johnson
Filed 3/10/06 P. v. Johnson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
THIRD APPELLATE DISTRICT
(Butte)
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| THE PEOPLE, Plaintiff and Respondent, v. SANDRA MARIE JOHNSON, Defendant and Appellant. | C050381
(Super. Ct. Nos. CM020596, CM021677 & CM023113)
|
Defendant, Sandra Marie Johnson, pleaded no contest to charges of perjury, petty theft with a prior, and burglary.
The trial court sentenced her to the upper term on the perjury charge, to consecutive sentences on the other two charges and an enhancement. On appeal, defendant argues the trial court violated her Sixth Amendment and due process rights when it imposed upper and consecutive terms based on factors that were not tried to a jury. She also argues the trial court erred in failing to state its reasons for imposing consecutive sentences.
We shall conclude defendant forfeited her objection to the trial court's failure to state its reasons for the consecutive sentences by not objecting below. We shall further conclude that the California Supreme Court has resolved the constitutional claims she raises, and that the resolution is not in her favor. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On July 12, 2004, defendant entered into a plea agreement in case No. CM020596 pursuant to which she pled no contest to one count of perjury (Pen. Code, § 118) in exchange for the dismissal of two perjury counts, one forgery count (Pen. Code,
§ 470, subd. (b)), and one count of unlawfully obtaining public aid.[1] (Welf. & Inst. Code, § 10988, subd. (c)(2).) Defendant agreed that the court could consider the dismissed counts at sentencing.
On December 6, 2004, in case No. CM021677, defendant entered into a plea agreement pursuant to which she pled no contest to one count of petty theft with a prior (§ 666) and admitted she committed the offense while she was released from custody on bail or her own recognizance in case No. CM020596,
in exchange for the dismissal of one count of possessing a drug smoking device. (Health & Saf. Code, § 11364.) She agreed the court could consider the dismissed count at sentencing.
On June 27, 2005, defendant entered into a plea bargain in case No. CM023113 pursuant to which she pled no contest to one count of burglary (§ 459) in exchange for the dismissal of enhancing allegations that she committed the offense while released from custody on bail or her own recognizance in the prior two cases (§ 12022.1) and had served a prior prison term.
(§ 667.5, subd. (b).) She agreed the court could consider the dismissed enhancements at sentencing.
On July 25, 2005, defendant appeared for sentencing in all three cases. The trial court sentenced defendant to the upper term of four years for the perjury conviction, consecutive eight-month (one-third the middle term) terms for the petty theft and burglary convictions, and an additional two years (consecutive) for the commission while out of custody enhancement. Defendant's aggregate sentence was seven years and four months.
DISCUSSION
I
Defendant contends the trial court erred in imposing the upper and consecutive terms because it relied upon facts not submitted to the jury and proved beyond a reasonable doubt, in violation of the principles enunciated in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]. The California Supreme Court rejected these claims in People v. Black (2005) 35 Cal.4th 1238, and we are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
II
Defendant argues her case should be remanded for resentencing because the trial court failed to state its reasons for ordering the sentences to run consecutively. Defendant did not raise any objection at the sentencing hearing to the judge's failure to state the reasons for consecutive sentences. A defendant may not complain for the first time on appeal that the trial court failed to state reasons for a sentencing choice. (People v. Scott (1994) 9 Cal.4th 331, 356; People v. Bautista (1998) 63 Cal.App.4th 865, 867.) Defendant's failure to object precludes her from raising the issue on appeal. (People v. Neal (1993) 19 Cal.App.4th 1114, 1117.)
DISPOSITION
The judgment is affirmed.
BLEASE , Acting P.J.
We concur:
SIMS , J.
MORRISON , J.
Publication courtesy of La Mesa Wrongful Termination Lawyer (http://www.mcmillanlaw.us/) And La Mesa Lawyers Directory (http://www.fearnotlaw.com/ )
[1] Further undesignated statutory references are to the Penal Code.
