Fear Not Law Articles: P. v. Zamudio

<h1>P. v. Zamudio</h1> Filed 7/26/06 P. v. Zamudio CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 <table border="0" cellspacing="0" cellpadding="0"> <tr> <td width="319" valign="top"> THE PEOPLE, Plaintiff and Respondent, v. MANUEL ZAMUDIO, Defendant and Appellant. </td> <td width="319" valign="top"> 2d Crim. No. B187061 (Super. Ct. No. PA051561) (Los Angeles County) </td> </tr> </table> Here we hold that under People v. Black (2005) 35 Cal.4th 1238, a defendant is not entitled to a <a href="http://www.mcmillanlaw.us/">jury trial</a> on the factors used in imposing the <a href="http://www.fearnotlaw.com/">upper term. </a> We affirm. FACTS A jury found Manuel Zamudio guilty of assault by means likely to produce great <a href="http://www.sandiegohealthdirectory.com/">bodily injury</a>. (Pen. Code, § 245, subd. (a)(1).) Zamudio waived his right <a href="http://www.mcmillanlaw.us/">to a jury trial</a> on prior conviction and prior <a href="http://www.mcmillanlaw.us/">prison term allegations</a>. The trial court found Zamudio had one prior serious or violent felony conviction within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12, subds (a)-(d)), and had served four prior prison terms (Pen Code, § 667.5, subd. (b)). The trial court sentenced Zamudio to the upper term of four years for the <a href="http://www.sandiegohealthdirectory.com/">assault,</a> doubled the term under the three strikes law, and added a consecutive one year for each of the four prior prison terms, for a total of 12 years. In imposing the upper term for the assault, the trial court considered the following circumstances in <a href="http://www.mcmillanlaw.us/">aggravation: </a> that Zamudio was on parole when he committed the crime; that his prior performance on probation or parole was unsatisfactory; that his prior convictions as an adult are numerous and of increasing seriousness; and that he has engaged in violent conduct that indicates he is a serious danger to society. The trial court found no circumstances in <a href="http://www.sandiegohealthdirectory.com/">mitigation.</a>DISCUSSION I Zamudio contends the trial court denied him his <a href="http://www.mcmillanlaw.us/">Sixth Amendment right</a> to a jury trial on the findings used to impose the upper term for assault. The United States Supreme Court held in Blakely v. Washington (2004) 542 U. S. 296, 301, that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed <a href="http://www.fearnotlaw.com/">statutory maximum</a> must be submitted to a jury and proved beyond a reasonable doubt. (Citing Apprendi v. New Jersey (2000) 530 U. S. 446, 490.) But in Black, the <a href="http://www.mcmillanlaw.us/">California Supreme Court</a> held that judicial fact finding to impose the upper term does not violate Blakely, because the upper term is the statutory maximum authorized by the verdict. Zamudio argues that Shepard v. United States (2005) 544 U. S. 13, has undermined the Blakely exception for prior convictions. But Shepard did not overrule the exception; nor has our Supreme Court's decision in Black been overruled. Unless Black is overruled by the <a href="http://www.fearnotlaw.com/">United States Supreme Court</a>, we are bound to follow it. (See People v. Miller (1987) 196 Cal.App.3d 846, 850-851.) The judgment is affirmed. NOT TO BE PUBLISHED. GILBERT, P.J. We concur: YEGAN, J. COFFEE, J. Burt Pines, Judge Superior Court County of Los Angeles ______________________________ John D. O'Loughlin, 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, Supervising Deputy Attorney General, Theresa A. Patterson, Deputy Attorney General, for Plaintiff and Respondent. Publication courtesy of <a href="http://www.fearnotlaw.com/">San Diego free legal advice</a>. Analysis and review provided by <a href="http://www.mcmillanlaw.us/">Santee Real Estate Attorney</a>.

Description	A decision regarding assault by means likely to produce great bodily injury.
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