P. v. Smith

Filed 10/2/06 P. v. Smith CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Edward P. Moffatt, Judge.

Michele A. Douglass, 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, John G. McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.

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A Madera County jury found Rose Marie Smith (Appellant) guilty of two counts of possession of methamphetamine for sale. The trial court sentenced Appellant to an upper three-year prison term for the first count plus a consecutive eight-month subordinate term (one-third of the middle term) for the second count. On appeal, Appellant contends the trial court’s imposition of the upper term violated her federal constitutional right for a jury to decide, beyond a reasonable doubt, the facts warranting an upper-term sentence. (Blakely v. Washington (2004) 542 U.S. 296 (Blakely); Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi).) Appellant also contends her counsel was ineffective for failing to object to the upper term sentence.

BACKGROUND

After the trial court consolidated two cases, the prosecution charged Appellant with two counts of possessing methamphetamine for the purpose of sale on or about February 5, 2005, and February 17, 2005. (Health & Saf. Code, § 11378.) The trial court subsequently granted the prosecution’s motion to dismiss a prior prison term enhancement allegation. (Pen. Code, § 667.5.) On November 7, 2005, a jury returned verdicts finding Appellant guilty of both counts.

At a December 15, 2005, sentencing hearing, the trial court denied placing Appellant on probation and explained its reasons for imposing the upper and consecutive terms as follows:

“As to Count 1, the violation of [section] 11378 of the Health & Safety Code[,] the [Court] looked at the circumstance[s] in aggravation and mitigation and in mitigation the Court will note that she has [completed] her parole satisfactorily. But in aggravation [her] prior convictions are numerous. Several served -- she has served prior prison terms. Her performance on probation was unsatisfactory. The circumstances in aggravation clearly preponderate. And the Court will impose three years state prison the aggravated term.

“As to Count 2 It appears to me that she didn’t learn her lesson the first time and she continued to be involved in the same activity. So I’m finding that even though they were close in time it is not a single period of aberrant behavior. It’s more of a defiance of not learning her lesson.”

DISCUSSION

The United States Supreme Court held in Blakely that a Washington state court denied a criminal defendant his constitutional right to a jury trial by increasing a defendant’s sentence for second degree kidnapping from the “standard range“ of 49 to 53 months to 90 months based on the trial court’s finding that the defendant acted with “ ‘deliberate cruelty.’ “ (Blakely, supra, 542 U.S. at p. 300.) Blakely concluded the state court violated the rule previously announced in Apprendi that, “ ‘[o]ther 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.’ “ (Blakely, supra, 542 U.S. at p. 301.) Blakely clarified that, for Apprendi purposes, the “ ‘statutory maximum’ “ is “not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” (Id. at pp. 303-304.) The California Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238, 1260, 1261 (Black) precludes Appellant’s argument. Black held that a trial court’s imposition of an upper prison term or a consecutive sentence does not violate a defendant’s constitutional right to a jury trial. (Id. at p. 1244.) Black reasoned that “in operation and effect, the provisions of the California determinate sentence law simply authorize a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range.” (Id. at p. 1254.) As Appellant recognizes, Black is binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We therefore reject Appellant’s contention that her upper term sentence is impermissible.^[1] Defense counsel similarly cannot be faulted for providing ineffective assistance by not raising an objection that had already been rejected by our Supreme Court. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Bolin (1998) 18 Cal.4th 297, 333.)

DISPOSITION

The judgment is affirmed without prejudice to any relief to which Appellant might be entitled after the United States Supreme Court determines the effect of Blakely, supra, 542 U.S. 296 on California law in Cunningham v. California, No. 05-6551.

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^* Before Harris, Acting P.J., Levy, J., and Dawson, J.

^[1] We acknowledge that the reasoning of Black is now before the United States Supreme Court in Cunningham v. California, No. 05-6551, certiorari granted February 21, 2006 [126 S.Ct. 1329].