P. v. Lopez
Filed 4/17/09 P. v. Lopez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, Plaintiff and Respondent, v. GILBERT LOPEZ et al., Defendants and Appellants. | B207920 (Los Angeles County Super. Ct. No. NA073746) |
APPEALS from judgments of the Superior Court of Los Angeles County, Jesse I. Rodriguez, Judge. Affirmed.
Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant Gilbert Lopez.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant Edward Nathaniel Cobbs.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
______________________
Gilbert Lopez and Edward Nathaniel Cobbs appeal from the judgments entered following their convictions by jury on count 2 assault by means likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1)) with, as to Cobbs, infliction of great bodily injury (Pen. Code, 12022.7, subd. (a)) and a court finding that he served a prior prison term (Pen. Code, 667.5, subd. (b)), following Lopezs conviction by jury on three counts of criminal threats (Pen. Code, 422; counts 3 through 5), and following Cobbss conviction by jury on count 6 second degree robbery (Pen. Code, 211). The court sentenced Lopez and Cobbs to prison for six years and eight years, respectively. We affirm the judgments.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that in 2005, Lopez and Angelica Rojas divorced. Rojas and Hector Medina were seeing each other before and after the divorce. On February 7, 2007, Lopez told Rojas not to be surprised if her boyfriend, i.e., Medina, disappeared.
About 7:00 a.m. on February 8, 2007, appellants, dressed in black, were in the parking structure where Medina lived. Medinas sister, Laura Medina (Laura) spoke to appellants and they told her that they were looking for a named person. Laura did not recognize the name. About 7:15 a.m., appellants were still in the structure.
About 7:45 a.m., Medina went to his car, which was in the structure. His car had been vandalized and one of its tires was flattened. Appellants approached Medina and, shortly thereafter, began feloniously assaulting him. Medina managed to flee but dropped his cell phone. He kept running, afraid appellants would resume their assault if he stopped to pick up the phone. Twice on February 14, 2007, and once on February 15, 2007, Lopez made a criminal threat to Medina.
CONTENTION
Appellants claim the trial court violated their rights to a jury trial and due process when imposing upper terms on count 2.
DISCUSSION
The Trial Court Did Not Violate Appellants Rights to a Jury Trial or Due Process.
At appellants May 8, 2008 sentencing hearing, the prison sentence which the court imposed on each appellant included a four-year upper term on count 2. The court imposed that upper term as to each appellant because the manner in which the crime was carried out indicated planning and sophistication. The court imposed that upper term as to Lopez for the additional reason that he induced others to participate in the commission of a crime.
Each appellant claims the trial court denied his right to a jury trial and to due process when the court imposed the upper term on count 2. We disagree.
In Cunningham [v. California (2007)] 549 U.S. 270 [166 L.Ed.2d 856], the Supreme Court applied Apprendi [v.New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]] and Blakely [v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]] to Californias then existing determinate sentencing law, which provided that the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. (Former [Pen. Code,] 1170, subd. (b).) The Supreme Court held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Cunningham, supra, at p. ___ [166 L.Ed.2d at p. 864], italics added, overruling People v. Black (2005) 35 Cal.4th 1238 . . . (Black I) on this point.)
The California Legislature quickly responded to the Cunningham decision. Senate Bill No. 40 (20072008 Reg. Sess.) (Senate Bill 40) amended section 1170 in response to Cunninghams suggestion that California could comply with the federal jury-trial constitutional guarantee while still retaining determinate sentencing, by allowing trial judges broad discretion in selecting a term within a statutory range, thereby eliminating the requirement of a judge-found factual finding to impose an upper term. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at pp. 876877]; see Stats. 2007, ch. 3, 1.) (People v.Wilson (2008) 164 Cal.App.4th 988, 991-992 (Wilson).)
Wilson continued, Senate Bill 40 amended section 1170 so that (1) the middle term is no longer the presumptive term absent aggravating or mitigating facts found by the trial judge; and (2) a trial judge has the discretion to impose an upper, middle or lower term based on reasons he or she states. As amended, section 1170 now provides as pertinent: When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. . . . The court shall select the term which, in the courts discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected . . . . ( 1170, subd. (b).) This amended version of section 1170 became effective on March 30, 2007. (Stats. 2007, ch. 3, 2.) (Wilson, supra, 164 Cal.App.4th at p. 992.)
Here, the trial court sentenced appellants in 2008, and the trial court stated its reason(s) for imposing the upper term on count 2 as to each appellant. The trial courts sentencing of appellants in compliance with the requirements of amended Penal Code section 1170, subdivision (b), did not violate appellants federal constitutional rights under Apprendi, Blakely, or Cunningham. The fact thatappellants committed the offense at issue in count 2 in February 2007, i.e., before the effective date of the amendment, does not compel a contrary conclusion. (Wilson, supra, 164 Cal.App.4th at pp. 990-992; see People v. Sandoval (2007) 41 Cal.4th 825, 845.)
DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
We concur:
CROSKEY, Acting P. J.
ALDRICH, J.
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