P. v. Jordan

Filed 5/17/06  P. v. Jordan 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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 COURT^*

            APPEAL from a judgment of the Superior Court of Madera County.  Edward P. Moffat, Judge.

            John Doyle, 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, and Wanda Hill Rouzan, Deputy Attorney General, for Plaintiff and Respondent.

            Defendant Marcus Gene Jordan received a prison commitment of five years after he entered into a plea agreement for no greater than a five-year term in prison.  This sentence was based upon the trial court's finding that the circumstances in aggravation justified the imposition of the upper term for his plea of no contest to inflicting corporal injury upon his spouse with a prior.  (Pen. Code, §  273.5, subds. (a) & (e)(1)--all further references will be this code.)  He additionally pleaded no contest to making criminal threats (§  422) to the same victim, for which he received a concurrent three-year term. 

            This appeal purports to be based on the sentence or other matters occurring after the plea.  In substance, defendant claims he was improperly sentenced to the upper term without a jury finding of aggravation, and that the trial court failed to advise him of his right to such a jury determination.  We will dismiss the appeal.

FACTS

            In December 2003, defendant got into an argument with his wife at an apartment complex.  As she walked up to her father's vehicle, in which she planned to leave the location, defendant halted her and kicked the door of the vehicle.  As she got into the vehicle, he jumped in through the back door.  The wife asked him to get out of the vehicle as she drove.  When she pulled into a convenience store parking lot, defendant resumed the argument.  He struck her five times and held his hands around her neck, preventing her from escaping the vehicle.  Defendant admonished her that he or someone in his family would kill her if she called the police. 

DISCUSSION

Failure to Object and Obtain Certificate of Probable Cause

            The People contend that defendant is barred from bringing this appeal because he failed to object to the trial court's findings in aggravation at the time of sentencing and he further failed to obtain a certificate of probable cause from that court. 

            To the extent defendant challenges the sentence imposed, we are guided as follows:  â€