P. v. Ituarte
Filed 9/14/06 P. v. Ituarte CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
| THE PEOPLE, Plaintiff and Respondent, v. JORGE DAVID ITUARTE, Defendant and Appellant. | E039120 (Super.Ct.No. FWV025155) O P I N I O N |
APPEAL from the Superior Court of San Bernardino County. Gerard S. Brown, Judge. Affirmed.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Scott C. Taylor, Supervising Deputy Attorney General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL BACKGROUND
A jury found defendant guilty of murder (count 1; Pen. Code, § 187, subd. (a)),[1] carjacking (count 2; § 215, subd. (a)), criminal threats (count 6; § 422), evading a police officer causing death (count 7; Veh. Code, § 2800.3), attempted robbery (count 12; §§ 664, 211), four counts of robbery (counts 3 & 9-11; § 211), resisting an officer (count 8; § 69), and six counts of assault with a semiautomatic firearm (counts 4-5 & 13-16; § 245, subd. (b)). With respect to the carjacking, robbery, attempted robbery, assault, and criminal threat counts, the jury found true the enhancement allegations that a principal was armed with a firearm. (§ 12022, subd. (a)(1).)
In an earlier appeal by defendant, we issued an unpublished opinion affirming his convictions and instructing the trial court to hold a new sentencing hearing. (People v. Ituarte (May 5, 2005, E035609) [nonpub. opn.].) At the new sentencing hearing, defendant was sentenced to an indeterminate term of 25 years to life for the murder count, plus a determinate term of 20 years 8 months on the remaining counts. The determinate term was based in part upon the court's selection of the upper term on count 2 (carjacking). This upper term was based upon the court's finding that the manner in
which the crime was carried out indicated planning, sophistication, or professionalism. (See Cal. Rules of Court, rule 4.421(a)(8).)
On appeal, defendant contends that the court's imposition of the aggravated term on count 2 violated his constitutional rights under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely).[2] We reject the contention, and affirm.
ANALYSIS
Defendant acknowledges that his argument is contrary to the California Supreme Court's decision in People v. Black (2005) 35 Cal.4th 1238, which held that the selection of a sentence within the upper, middle, and lower term range of sentences provided under California law is constitutional and not contrary to Blakely. (People v. Black, supra, at p. 1261.) We are bound to follow Black. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.)[3] Accordingly, we reject defendant's argument.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ King
J.
We concur:
/s/ Ramirez
P.J.
/s/ McKinster
J.
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[1] All further statutory references are to the Penal Code unless otherwise indicated.
