P. v. Manuel

Filed 6/20/06 P. v. Manuel 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 Tulare County. Paul A. Vortmann, Judge.

Sandra Uribe, 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, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Travis Manuel (appellant), appealed from a conviction of mayhem. Appellant contended that the court abused its discretion in sentencing him to the upper term of imprisonment.^[1] In an opinion filed June 23, 2004, we affirmed the judgment, holding that battery with serious bodily injury is a lesser-included offense of mayhem and aggravated mayhem, but the evidence still did not warrant the instruction. We also held that the court did not err in sentencing.

On June 24, 2004, the United States Supreme Court issued its decision in Blakely v. Washington (2004) 542 U.S. 296. Defendant petitioned for rehearing, arguing that the trial court violated the Sixth Amendment as interpreted in Blakely by imposing the upper term of imprisonment based on facts not found by the jury. We agreed with appellant, vacated the sentence, and remanded for resentencing on April 15, 2005.^[2]

On June 20, 2005, the California Supreme Court filed its opinion in People v. Black (2005) 35 Cal.4th 1238. After soliciting briefing from the parties on the effect of Black on our opinion, the trial court reinstated its original judgment without conducting a factual hearing or selecting those factors under Blakely which do not require a factual finding by a jury.

Appellant contends the trial court failed to follow our instructions on remand and erred in not conducting proper hearings pursuant to Blakely. Respondent replies that the doctrine of law of the case was superseded by the California Supreme Court's decision in Black.^[3]

SENTENCING HEARING

On July 29, 2005, the trial court granted defense counsel's request to file written briefs to explore the impact of the Black decision on the instant action. Appellant's brief argued that the trial court should impose the midterm sentence, or alternatively, determine sentencing following the Blakely requirements. The prosecutor argued the California Supreme Court's decision in Black determined that Blakely did not apply to California's sentencing scheme and argued the trial court should reimpose its original sentence.

At sentencing, the trial court noted our opinion recognized the application of Blakely to California law was then pending before the California Supreme Court. The court found that it had to follow the Black decision. The court affirmed imposition of the aggravated term and confirmed the original sentence.^[4]

DISCUSSION

Appellant contends the trial court failed to follow our express resentencing instructions on remand. Respondent argues that our opinion was superseded by the California Supreme Court's Black opinion. We agree with respondent and will affirm.

In People v. Sequeira (1982) 137 Cal.App.3d 898, the appellate court had remanded a case for resentencing because it determined that armed robbery was not a violent felony as defined by California statutory law. Prior to resentencing by the trial court after remand from the appellate court, the California Supreme Court specifically found that armed robberies are violent felonies. At resentencing, the trial court rejected the prosecution argument that California law had changed and applied the doctrine of law of the case, following the appellate court opinion. (Id. at pp. 899-900.) The Sequeira court found the principal ground for ignoring the doctrine is an intervening or contemporaneous change in the law. (Id. at p. 901; also see People v. Mitchell (2000) 81 Cal.App.4th 132, 153.)

Appellant finds a distinction between this case and Sequeira, arguing the trial court was imposing an unauthorized sentence in Sequeira whereas here, the court could have followed our opinion and reimposed the upper term based on facts already in the record which are permissible under Blakely. Though the trial court could have followed this procedure, it was not error here for the trial court to reimpose the upper term without consideration to the remand instructions in our opinion. We agree with respondent that the California Supreme Court's opinion in Black superseded our opinion in the instant action. The doctrine of stare decisis announced in Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 is binding on all tribunals exercising inferior jurisdiction, including the trial courts. (People v. Sequeira, supra, 137 Cal.App.3d at pp. 900-901.) The trial court was no longer bound to our opinion after the California Supreme Court published Black and it did not err in reimposing the upper term for appellant's mayhem conviction.^[5]

DISPOSITION

The judgment is affirmed without prejudice to any relief to which defendant might be entitled after the United States Supreme Court determines in Cunningham v. California, No. 05-6551, the effect of Blakely v. Washington, supra, 542 U.S. 296 and United States v. Booker (2005) 543 U.S. 220, on California Law.

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^* Before Wiseman, Acting P.J., Levy, J., and Cornell, J.

^[1] The court imposed the upper term of eight years plus one year for a weapon enhancement pursuant to Penal Code section 12022, subdivision (b).

^[2] In finding error and directing the trial court on remand, we observed:

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