P. v. Otano
Filed 5/9/06 P. v. Otano CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
THIRD APPELLATE DISTRICT
(Calaveras)
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THE PEOPLE, Plaintiff and Respondent, v. JAMES ROBERT OTANO, Defendant and Appellant. | C050216 (Super. Ct. No. F3415) |
A jury convicted defendant James Robert Otano of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)) and vandalism (Pen. Code, § 594, subd. (b)(1)) and found true that he served two separate prison terms for prior convictions
(Pen. Code, § 667.5, subd. (b)), one of which was also a strike (Pen. Code, § 667, subds. (d) & (e)). He was sentenced to state prison for eight years on the burglary--the upper term of three years, doubled to six years because of the strike, plus two years for the service of the prior prison terms. Sentence was imposed on the vandalism, but stayed pursuant to Penal Code section 654.
Relying on Blakely v. Washington (2004) 542 U.S. 296
[159 L.Ed.2d 403], defendant contends the trial court violated his right to have a jury determine, beyond a reasonable doubt, the aggravating factors it used to justify imposing the upper term. Defendant recognizes that the California Supreme Court rejected his position in People v. Black (2005) 35 Cal.4th 1238, 1254, but states that he is making the argument to preserve the issue for federal review. Pursuant to Black we reject the contention. (Auto Equity Sales Inc. v. Superior Court (1962)
57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
BLEASE , Acting P.J.
We concur:
NICHOLSON , J.
MORRISON , J.
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