P. v. Richardson

Filed 10/27/06 P. v. Richardson CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles E. Horan, Judge. Affirmed.

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Janice M. Lagerlof, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Ana R. Duarte and Dawn S. Mortazavi, Deputy Attorneys General, for Plaintiff and Respondent.

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We review a portion of this case for a second time. “After a joint trial before two juries, one jury convicted Johnny Richardson of attempted murder (count 1), two counts of second-degree robbery (counts 2 and 3), violent false imprisonment as a lesser crime of kidnapping for robbery (count 4), and possessing a firearm as a felon (count 6). The jury also found that a principal was armed with a firearm in counts 1-4, and that Richardson personally used a firearm in counts 2-4. (Pen. Code, §§ 664, 187, subd. (a); 211, 212.5; 236, 237, subd. (a); 12021, subd. (a)(1); 12022, subd. (a)(1); 12022.53, subd. (b), 12022.5, subd. (a); all further section references are to the Penal Code.) The second jury acquitted Aubria Boglin of attempted murder (count 1) but convicted him of the same two second-degree robberies and the same violent false imprisonment (counts 2-4) and possessing a firearm as a felon (count 7). The second jury also found that a principal was armed with, and Boglin personally used, a firearm in counts 2-4, and that Boglin inflicted great bodily injury in count 2. (§ 12022.7, subd. (a).) In a bifurcated trial, the court found Richardson had previously been convicted of one, and Boglin of three, serious strike felonies. (§§ 667, subds. (a)-(i), 1170.12.) Richardson was sentenced to 35 years, 4 months in prison; Boglin was sentenced to 108 years-to-life in prison.” (People v. Boglin and Richardson (Aug. 31, 2005, B174917) [non-pub. opn.].)

In our previous opinion, we affirmed Boglin’s judgment in its entirety, but reversed Richardson’s attempted murder conviction and sentence, remanded for a new trial on that charge and resentencing, and in all other respects affirmed Richardson’s judgment. On remand, the People declined to retry the attempted murder charge, which the court dismissed. The court imposed an aggregate 30-year, 4-month sentence, including an upper term on the count 2 robbery based on three aggravating factors found by the court.

Richardson appeals from the resulting judgment,^[1] contending that the court erred in imposing an upper term on the count 2 robbery without a jury finding aggravated sentencing factors in violation of Blakely v. Washington (2004) 542 U.S. 296.^[2] As we did in our earlier opinion, we must reject this claim under People v. Black (2005) 35 Cal.4th 1238. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Richardson argues that Black was wrongly decided, apparently to preserve the issue for federal review.^[3]

We reject the Attorney General’s argument that Richardson waived this issue by not raising it in the trial court. Unlike the defendant in People v. Hill (2005) 131 Cal.App.4th 1089, 1103 (upon which the Attorney General relies), who waived a Blakely challenge by failing to raise it at his sentencing which occurred after Blakely but before Black, Morris was sentenced after Black, at which point a Blakely objection would have been futile under controlling law that the court was compelled to follow. Under these circumstances, Morris did not waive the issue. (People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5; City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 784-785.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, Acting P.J. JACKSON, J.^*

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^[1] Boglin is not a party to this appeal.

^[2] In his argument headings, but not in the text of his brief, Richardson also argued that the court erred in imposing an upper term on the count 6 felon possessing a firearm conviction, which the court stayed under section 654. In fact, the court imposed a middle term on that count.

^[3] The United States Supreme Court has granted certiorari in a case presenting this issue. (Cunningham v. California (cert. granted Feb. 21, 2006) No. 05-6551 [126 S.Ct. 1329].)

^* (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)