P. v. Woodhouse
Filed 9/28/06 P. v. Woodhouse CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FOUR
| THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN WOODHOUSE, Defendant and Appellant. | B185023 (Los Angeles County Super. Ct. No. BA257254) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Leslie E. Brown, Judge. Affirmed.
Murray A. Rosenberg, 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, Chung L. Mar and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
Benjamin Woodhouse appeals from judgment entered following an order revoking probation and sentencing him to six years in prison. Previously, appellant pled guilty to possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and admitted he had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). He contends the high-term sentence imposed must be reversed because that sentence was based upon factual determinations by the court and thus denied him his right to a jury trial.
FACTUAL AND PROCEDURAL SUMMARY
Following appellant’s guilty plea to possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and his admission that he had served three prior prison terms within the meaning of Penal Code section 667.5, subdivision (b), imposition of sentence was suspended and he was placed on formal probation for a period of three years under the terms and conditions of Proposition 36 (Pen. Code, § 1210.1).
On July 15, 2004, the Proposition 36 program was terminated by stipulation, and appellant was placed on formal probation for a period of three years under various terms and conditions.
On June 6, 2005, following a contested probation violation hearing, appellant was found in violation of probation for failing to obey all laws. The court found by a preponderance of the evidence that appellant took CDs from a store without paying for them.
On July 12, 2005, referencing the People’s sentencing memorandum, the court sentenced appellant to prison for the upper term of three years and one year for each of the three prior prison terms admitted under Penal Code section 667.5, subdivision (b) for a total of six years. The sentencing memorandum listed as circumstances in aggravation that appellant was on probation or parole when the crime was committed and that his prior performance on probation or parole was unsatisfactory. As a circumstance in mitigation, it was noted that appellant had voluntarily acknowledged wrongdoing at an early stage in the criminal process.
DISCUSSION
Appellant contends he was improperly sentenced to the upper term in violation of his federal constitutional rights to a jury trial and due process. (Blakely v. Washington (2004) 542 U.S. 296.) He claims the trial court erroneously imposed an upper term based on its own findings of aggravating facts that were not tried or found true by a jury. He acknowledges People v. Black (2005) 35 Cal.4th 1238 but claims it was wrongly decided. In People v. Black (id. at p. 1254), the California Supreme Court held that Blakely does not invalidate California’s upper-term sentencing procedure. Appellant’s argument raises no issues not resolved in Black.[1] We are bound to follow decisions of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)[2]
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
WILLHITE, Acting P.J.
SUZUKAWA, J.
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[1] The United States Supreme Court has granted certiorari in People v. Cunningham (Apr. 18, 2005, A103501) [nonpub. opn.], certiorari granted sub nom. Cunningham v. California (Feb. 21, 2006, No. 05-6551) ___ U.S. ___ [126 S.Ct. 1329], on the issue whether Blakely applies to California’s determinate sentencing law.
[2] Respondent argues that at the time appellant entered his guilty plea on the underlying offense of possession of a controlled substance he agreed he could be sentenced to six years in prison if he violated probation and that appellant cannot now contend imposition of his six-year sentence violates Blakely. The record, however, does not support the claim that appellant agreed his sentence would be six years. Rather, the transcript of the proceedings appears to indicate appellant understood he faced a potential maximum sentence of six years if he violated probation and the court was required to impose a sentence.
