P. v. Kanehe

Filed 6/30/06 P. v. Kanehe CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. J. Thompson Hanks, Judge. Affirmed.

ORIGINAL PROCEEDING; petition for writ of habeas corpus. J. Thompson Hanks, Judge. Petition denied.

Carla J. Johnson for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Deputy Senior Assistant Attorney General, and Robert M. Foster, Deputy Attorney General, for Plaintiff and Respondent.

This is defendant's second appeal following a remand by this court for resentencing. Defendant was convicted of 10 counts of committing a lewd act upon a child under the age of 14 by force, fear, or duress (Pen. Code, § 288, subd. (b)).^[1] As a result, defendant was sentenced to a total term of 30 years in state prison: consecutive low terms of three years for each count pursuant to section 667.6, subdivision (d). Subsequently, we found there was insufficient evidence to establish that defendant used force, fear, or duress in committing all of the counts, and reduced all of the counts to violations of section 288, subdivision (a) and remanded the matter for resentencing. (People v. Kanehe (July 13, 2004, E034889) [nonpub. opn., pp. 2, 11].)

On remand, defendant was sentenced to a total term of 21 years in state prison as follows: the low term of three years on count 1 and consecutive terms of two years on each of the nine other counts. In this second appeal, defendant contends (1) the trial court relied on improper factors in imposing consecutive terms; (2) he was deprived of his federal and state constitutional rights to a jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed consecutive terms on counts 2 through 10; and (3) his trial attorney provided ineffective assistance by failing to make various objections during the resentencing. In his writ of habeas corpus, defendant also claims his trial counsel rendered ineffective assistance by failing to make numerous objections during the resentencing. We reject these contentions because the record shows that the trial court properly exercised its discretion to impose consecutive sentences. We will therefore affirm the judgment and deny defendant's petition for writ of habeas corpus.

I

FACTUAL AND PROCEDURAL BACKGROUND^[2]

Defendant molested his daughter, K., beginning when she was three years old. He would touch her â€