P. v. Silva

Filed 10/17/06 P. v. Silva CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. Louis F. Bissig, Judge.

Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, J. Robert Jibson and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Rogelio Silva III pled guilty, in two separate cases, to assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)), committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members (Pen. Code, § 186.22, subd. (b)(1)), and escape (Pen. Code, § 4532, subd. (a)(1)). In a third case, appellant admitted he violated misdemeanor probation granted following convictions of driving under the influence of a drug and/or alcohol (Veh. Code, § 23152, subd. (a)) and failure to appear (Veh. Code, § 40508). The court imposed an aggregate sentence of fifteen years one day, consisting of the nine-year upper term on the assault count, five years on the accompanying gang enhancement, and one year one day on the escape count. The court imposed concurrent 180-day sentences on the two misdemeanors.

On appeal, appellant contends he was denied his constitutional right to trial by jury and due process of law because the court imposed the upper term on the assault count based on aggravating factors that were not found by a jury beyond a reasonable doubt.^[1]

Appellant bases this contention on Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] (Blakely). Specifically, he relies on the following principle stated in that case: “ ‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ “ (Id. at p. 301.) However, in People v. Black (2005) 35 Cal.4th 1238, the California Supreme Court held that the imposition of upper terms under California law does not constitute an increase in the penalty for a crime beyond the statutory maximum, and therefore “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.)

Appellant argues that (1) Black is wrongly decided and, (2) in any event, that case is not controlling because 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], certiorari granted February 21, 2006, No. 05-6551. However, 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.) We reject appellant’s argument that Black was wrongly decided and find no error in the imposition of the upper term.

The judgment is affirmed.

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^* Before Harris, Acting P.J., Gomes, J., and Hill, J.

^[1] Respondent contends appellant’s contention on appeal is, in essence, a challenge to the validity of the plea, and is therefore not cognizable on appeal because the trial court did not issue a certificate of probable cause (Pen. Code, § 1237.5). We assume without deciding that we may address appellant’s contention.