Fear Not Law Articles: P. v. Diaz

P. v. Diaz

Filed 9/14/06 P. v. Diaz 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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,

JOSE DIAZ,

Defendant and Appellant.

E039521

(Super.Ct.No. FVA25139)

OPINION

APPEAL from the Superior Court of San Bernardino County. Roberta McPeters, Judge. Affirmed.

Gerald Peters, 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, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Robert M. Foster, Deputy Attorney General, for Plaintiff and Respondent.

A jury found defendant and appellant Jose Diaz (defendant) guilty of committing corporal injury to a spouse, in violation of Penal Code section 273.5, subdivision (a). The trial court sentenced defendant to the upper term of four years. Defendant's sole contention on appeal is that the imposition of the upper term deprived him of his federal and state constitutional rights to a jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi). We reject this contention and affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

Defendant's wife Marina Diaz (the victim) told an officer that defendant struck the victim in the face and ribs with defendant's fists.

DISCUSSION

A. The Trial Court Properly Imposed the Upper Term

Relying on Blakely, supra, 542 U.S. 296, and Apprendi, supra, 530 U.S. 466, defendant argues the court's imposition of the upper term violated his constitutional rights to a jury trial and due process, and that the error is reversible per se.

The California Supreme Court in People v. Black (2005) 35 Cal.4th 1238 (Black),[1] however, affirmed the constitutionality of the California sentencing scheme. (Id. at p. 1244.) The court summarized its decision as follows: â€

Description	A jury found defendant and appellant guilty of committing corporal injury to a spouse, in violation of Penal Code section 273.5, subdivision (a). The trial court sentenced defendant to the upper term of four years. Defendant's sole contention on appeal is that the imposition of the upper term deprived him of his federal and state constitutional rights to a jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296. Court reject this contention and affirm the judgment.
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