P. v. Molina

Filed 10/19/06 P. v. Molina 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 Kern County. Lee Phillip Felice, Judge.

Deborah Prucha, 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, Stephen G. Herndon and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.

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Pursuant to a negotiated plea agreement, Rubens Antoniony Molina (appellant) pled no contest to assault with a deadly weapon, pursuant to Penal Code section 245, subdivision (a)(1). The trial court granted the People’s motion to dismiss the balance of the information. The court, finding factors in aggravation outweighed those in mitigation, sentenced appellant to the upper term of four years in state prison.

Appellant’s sole contention on appeal is that the imposition of the upper term deprived him of his federal and state constitutional rights to a jury trial guaranteed by the Sixth Amendment and his right to due process guaranteed by the Fourteenth Amendment. We disagree with his contention and affirm the judgment.

FACTS^[1]

In September 2005, appellant approached a woman as she was getting her books out of her car near Bakersfield College. Appellant had approached the same woman near her parked car before, and this time he asked that she go with him someplace to talk. The woman declined, but appellant pointed a screwdriver at her stomach and said, “You’re coming with me.” Appellant lunged at the woman, and, in the process, he fell into the car. He tried to pull the woman into the car, but she resisted and was able to honk the horn. Appellant continued to grab the woman until a passerby stopped to help. Appellant ran into a nearby alley.

DISCUSSION

Appellant contends he was improperly sentenced to the upper term in violation of his federal constitutional rights to a jury trial and due process. (Blakely v. Washington (2004) 542 U.S. 296.) He claims the trial court erroneously imposed an upper term based on its own findings of aggravating facts that were not tried or found true by a jury. Appellant recognizes that this court is bound to follow the holding of People v. Black (2005) 35 Cal.4th 1238, but asserts he is making this argument to preserve it for federal review.

In People v. Black, supra, 35 Cal.4th 1238, the California Supreme Court held that Blakely does not invalidate California’s upper term sentencing procedure. (Id. at p. 1254.) Appellant’s argument raises no issues not resolved in Black. We are aware that the United States Supreme Court has granted review of People v. Cunningham (see People v. Cunningham (Apr. 18, 2005, A103501) [nonpub.opn.], cert. granted sub nom. Cunningham v. California (Feb. 21. 2006, No. 05-6551) __ U.S. __ [126 S.Ct. 1329]), on the issue whether Blakely applies to California’s determinate sentencing law. However, at the present time, Black, supra, 35 Cal.4th 1238 is the controlling authority in California. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.) Therefore, based on the holding in Black, we reject appellant’s argument.

DISPOSITION

The judgment is affirmed.

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^*Before Levy, Acting P.J., Dawson, J. and Kane, J.

^[1]The facts are not at issue and are taken from the preliminary hearing.