P. v. Sauza

Filed 9/27/06 P. v. Sauza CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Appellant Wilfrido David Jiminez Sauza appeals from his conviction after jury trial of forcible rape (count 1) (Pen. Code, § 261, subd. (a)(2))[1] and first degree burglary (counts 2 and 5) (§ 459). The jury also found several special allegations concerning the rape to be true (using a dangerous and deadly weapon, tying and binding the victim, and committing the rape during the commission of a burglary). (§ 667.61, subds. (a), (b), (d) & (e).)

The trial court sentenced appellant to a total of 30 years 4 months to life in state prison, including three consecutive terms: (1) 25 years to life for the count 1 forcible rape, (2) four years (the middle term) for the count 2 burglary, and (3) 16 months (one-third the middle term) for the count 5 burglary. Appellant argues that remand for resentencing is required because Blakely v. Washington (2004) 542 U.S. 296 (Blakely) invalidates the trial court's imposition of consecutive terms based on facts that were not determined to be true by a jury. This contention has no merit. (People v. Black (2005) 35 Cal.4th 1238, 1245, 1257-1261.)

In Black, the California Supreme Court ruled that Blakely, supra, does not apply to the selection of the upper term or consecutive sentences under our determinate sentencing law. (People v. Black, supra, 35 Cal.4th at p. 1244.) A petition for certiorari is pending in Black. Earlier this year the United States Supreme Court granted a certiorari petition in another case involving the application of Blakely to the selection of the upper term. (Cunningham v. California (2006) __ U.S. __ [126 S.Ct. 1329], cert. granted Feb. 21, 2006, No. 05-6551.) We remain bound by the holding in Black unless and until the United States Supreme Court declares it to be an incorrect statement of federal law. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We reject appellant's argument that Black was wrongly decided and find no error in the imposition of consecutive sentences.

The judgment is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Philip H. Hickok, Judge

Superior Court County of Los Angeles

______________________________

Vanessa Place, 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, Senior Assistant Attorney General, Mary Sanchez, Steven D. Matthews, Supervising Deputy Attorneys General, Chung L. Mar, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to this code unless otherwise stated.