P. v. Perez

Filed 10/30/06 P. v. Perez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

Robert J. Higa, Judge. Affirmed.

David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell, Lawrence M. Daniels and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

INTRODUCTION

Defendant and appellant Gustavo Perez appeals from the judgment entered following a jury trial that resulted in his convictions for kidnapping during commission of a carjacking, kidnapping for robbery, second degree robbery, evading an officer with willful disregard, and leaving the scene of an accident. The trial court sentenced Perez to a term of 105 years to life in prison.

Perez contends imposition of consecutive sentences violated his right to trial by jury (Blakely v. Washington (2004) 542 U.S. 296). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence presented at trial established the following.[1] On September 25, 2004, Perez robbed a minimarket located in the City of Bell.

On November 18, 2004, Perez and two accomplices robbed a City of Bell Pizza Hut. During the robbery, Perez punched, kicked, and/or stomped the manager and employees. In addition to taking money from the Pizza Hut cash register and safe, Perez and his accomplices took money from the employees’ wallets.

On November 27, 2004, Perez entered a Huntington Park music store and robbed employee Isabel Samaniego. Taking Samaniego with him, Perez then carjacked Daisy Talamantes near the store. Perez punched Talamantes, forced both women into the car, and drove off. Perez punched and threatened to kill both women. Fortunately, a neighbor of Talamantes’s had witnessed the carjacking and alerted police. When a police car attempted to pull Perez over, Perez lead police on a high speed chase. He ran a red light, collided with another car, and continued to flee. He was apprehended by officers a short time thereafter.

2. Procedure.

Trial was by jury. Perez was found guilty of kidnapping for carjacking (Pen. Code, § 209.5, subd. (a));[2] kidnapping for robbery (§ 209, subd. (b)(1)); seven counts of second degree robbery (§ 211); evading an officer with willful disregard (Veh. Code, § 2800.1, subd. (a)); and leaving the scene of an accident (Veh. Code, § 20001). In a bifurcated proceeding, the trial court found Perez had suffered four “strike” priors and one serious felony conviction. (§§ 667, subds. (a), (b) -- (i), 1170.12, subds. (a) -- (d).) Perez’s Romero[3] motion was denied. The trial court sentenced Perez to a term of 105 years to life in prison. It also imposed a restitution fine, a victim restitution award, a suspended parole revocation fine, and a court security fee. Perez appeals.

DISCUSSION

1. Imposition of consecutive terms did not violate Blakely v. Washington. The trial court imposed a sentence of 25 years to life on count 1 (kidnapping during commission of a carjacking), the base term. It imposed consecutive sentences on counts 3 (kidnapping to commit robbery); 6 (leaving the scene of an accident); and 7 and 8 (robbery). Perez contends that imposition of consecutive sentences violated his constitutional right to a jury trial, citing Blakely v. Washington, supra, 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466. As Perez recognizes, our Supreme Court resolved the issue in People v. Black (2005) 35 Cal.4th 1238. Black concluded that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.) Black explained, “Blakely‘s underlying rationale is inapplicable to a trial court’s decision whether to require that sentences on two or more offenses be served consecutively or concurrently,” (id. at p. 1262), because “[t]he jury’s verdict finding the defendant guilty of two or more crimes authorizes the statutory maximum sentence for each offense.” (Id. at p. 1263.) As Perez recognizes, we are bound by Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, Perez’s Blakely claim lacks merit.[4]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, ACTING P. J.

KITCHING, J.

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[1] Because the circumstances of the crimes are not directly relevant to our analysis of the issues presented on appeal, we limit discussion of the facts to a brief summary.

[2] All further undesignated statutory references are to the Penal Code.

[3] People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

[4] Given our resolution of this issue, we find it unnecessary to reach the People’s contention that Perez’s claim was waived because he failed to object to the sentence on constitutional grounds below.