P. v. Perez

Filed 3/20/06 P. v. Perez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Brian S. McCarville, Judge. Affirmed as modified.

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Deputy Senior Assistant Attorney General, and Robert M. Foster, Supervising Deputy Attorney General, for Plaintiff and Respondent.

Following a jury trial, defendant Julio Ibar Perez was convicted of three violations of the Penal Code. Counts 1 and 2 included attempted robbery (Pen. Code,^[1] §§ 664, 211) and count 4 included assault with a deadly weapon (§ 245, subd. (a)(1).) As to each count, the jury found that the defendant personally used a knife in the commission of the crimes (§ 12022, subd. (b)(1)), causing the offenses to be serious felonies within the meaning of section 1192.7, subdivision (c)(23). Finally, it was found true that defendant had been convicted of a serious prior felony within the meaning of section 667, subdivision (a), and had served a prior prison term (§ 667.5, subd. (b)). As a result, defendant was sentenced to a term of 17 years 4 months in state prison. His sentence was comprised of the upper term of four years, which was doubled to eight years on the assault with a deadly weapon conviction (count 4), plus one year for the personal use of a knife enhancement. On count 1, the court imposed a consecutive term of 16 months plus one year for the personal use of a knife enhancement. On count 2, the court imposed and stayed a consecutive 16-month term and a one-year term for the personal use of a knife enhancement. The court also imposed five years for the serious prior felony and one year for the prior prison term.

Defendant appeals, contending that (a) the trial court erred under Blakely v. Washington (2004) 542 U.S. 296, when it imposed the four-year upper term sentence for his conviction for assault with a deadly weapon; and (b) the trial court erred when it imposed consecutive full terms of one year each for the personal use of the knife enhancement on counts 1 and 2.

Based on the Supreme Court's decision in People v. Black (2005) 35 Cal.4th 1238, we reject defendant's claim that his sentence must be reduced to the midterm. With respect to defendant's second argument, we agree that the trial court improperly imposed consecutive full terms of one year each for the personal use of the knife enhancement (§12022, subd. (b)(1)) on counts 1 and 2. Consequently, we affirm as modified.

STATEMENT OF FACTS

On June 8, 2004, at around 9:30 p.m., James Allen was sitting in the driver's seat of his tow truck chatting with an acquaintance outside when two men approached the vehicle. One of the men, defendant, asked Allen for his wallet. When Allen refused, defendant pulled a knife from his jacket and started to jab Allen with it. Allen began shouting for help. As a result, defendant and his accomplice fled. Allen and his acquaintance chased the would-be robbers, called the police, and gave them a description of the getaway van. Soon after, the police stopped the van and arrested defendant and the other would-be robber.

DISCUSSION

A. Upper Term Sentence for Assault with a Deadly Weapon

Defendant contends the trial court's imposition of the upper term sentence of four years for his conviction of assault with a deadly weapon violated his right to a jury trial under Blakely v. Washington, supra, 524 U.S. 296.

Based on its decision in People v. Black, supra, 35 Cal.4th at p. 1244, the California Supreme Court held that the judicial factfinding necessary to support imposing an upper term does not violate a defendant's right to a jury trial. As a result, this court is bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Although defendant acknowledges that we are bound to follow People v. Black, supra, he adheres to his argument to preserve the issue for federal court review.

B. Modification of Abstract of Judgment

Defendant contends and respondent concedes that the trial court erred when it imposed consecutive terms of one year each for the personal use of the knife enhancement on counts 1 and 2. We agree.

Section 1170.1, subdivision (a), provides, in relevant part: â€