P. v. Ramirez

Filed 10/16/06 P. v. Ramirez CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THE PEOPLE,

Plaintiff and Respondent,

JAVIER DIAZ RAMIREZ,

Defendant and Appellant.

B189062

(Los Angeles County

Super. Ct. No. VA091754)

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

Michael A. Cowell, Judge. Affirmed.

Lea Rappaport Geller, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

Appellant Javier Ramirez was convicted, following a jury trial, of one count of robbery in violation of Penal Code section 211. The trial court found true the allegations that appellant had served two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced appellant to the upper term of five years in state prison, plus two one-year enhancements for the prior prison terms.

Appellant appeals from the judgment of conviction, contending that the trial court's imposition of the upper term violated his federal constitutional rights to a jury trial and due process. We affirm the judgment of conviction.

Facts

On the evening of October 8, 2005, appellant robbed Fernando Coverrubis. Coverrubis believed that appellant had a gun, although he never saw it. Coverrubis saw appellant get on a bus. He flagged down a police officer, who stopped the bus and arrested appellant.

Discussion

Appellant contends that under Blakely v. Washington (2004) 542 U.S. 296, the trial court violated his right to a jury trial and to due process by imposing the upper term based on facts that he did not admit and that a jury did not find true beyond a reasonable doubt.

Respondent contends, and we agree, that appellant has forfeited this claim by failing to raise it in the trial court. Appellant's sentencing in this matter took place in January, 2006, well after the U.S. Supreme Court issued its opinion in Blakely. (People v. Hill (2005) 131 Cal.App.4th 1089, 1103.)

Further, as appellant acknowledges, we are bound by the ruling of the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238 that Blakely did not invalidate California's current sentencing scheme.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

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Description	Appellant was convicted, following a jury trial, of one count of robbery. The trial court found true the allegations that appellant had served two prior prison terms. The trial court sentenced appellant to the upper term of five years in state prison, plus two one-year enhancements for the prior prison terms. Appellant appeals from the judgment of conviction, contending that the trial court's imposition of the upper term violated his federal constitutional rights to a jury trial and due process. Court affirmed the judgment.
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