P. v. Thurston
Filed 4/5/06 P. v. Thurston 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 PEOPLE, Plaintiff and Respondent, v. KENYATTA THURSTON, Defendant and Appellant. |
F048865
(Super. Ct. No. 04CM7372)
OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Peter M. Schultz, 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, and Stan Cross, Deputy Attorney General, for Plaintiff and Respondent.
-ooOoo-
A jury convicted appellant, Kenyatta Thurston, of battery on a correctional officer (Pen. Code, § 4501.5). In a separate proceeding Thurston admitted allegations that he had a prior conviction within the meaning of the three strikes law (Pen. Code, § 667, subds. (b)-(i)). On appeal, Thurston contends: 1) the court erred when it imposed the upper term; and 2) his abstract of judgment contains certain errors.[1] We will affirm.
FACTS
On May 3, 2004, when Correctional Officer L. Perez picked up a nylon string coming from Thurston's cell, Thurston pulled on it causing it to get caught on Perez's thumb. Although Perez attempted to let go of the string, Thurston pulled on it twice more breaking Perez's thumb.
DISCUSSION
Imposition of the Upper Term
Thurston contends that his sentence violates the Sixth Amendment as interpreted in Blakely v. Washington (2004) 542 U.S. 296 because the court imposed the upper term for his conviction based on facts not found true by a jury beyond a reasonable doubt. Recently, our Supreme Court issued its opinion in People v. Black (2005) 35 Cal.4th 1238. The court held that the imposition of upper terms under California law is unaffected by Blakely and the related decision in United States v. Booker (2005) 543 U. S. 220. (People v. Black, supra, 35 Cal.4th 1238, 1257, 1258.) Accordingly, we must reject Thurston's argument.
Thurston's Abstract of Judgment
Thurston's abstract of judgment notes that in the Los Angeles County case Thurston was entitled to â€
