P. v. Frluckaj

Filed 6/8/06 P. v. Frluckaj 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from the Superior Court of Riverside County. Dennis A. McConaghy, Judge. Affirmed with directions.

Athena Shudde, 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 Lilia E. Garcia and Meagan J. Beale, Supervising Deputy Attorneys General.

The sole contention raised by defendant and appellant Amil Frluckaj (defendant) is that the trial court's imposition of the upper term and consecutive sentences 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.

I

FACTUAL AND PROCEDURAL HISTORY

Defendant was convicted of four counts of second degree burglary (Pen. Code,^[1] § 211; counts 1, 2, 4, 5), two counts of first degree robbery (§§ 211, 212.5, subd. (b); counts 7, 9), assault with a firearm (§ 245, subd. (a)(2); count 10), and kidnapping for robbery (§ 209, subd. (b)(1); count 8). The jury also found true that defendant personally used a firearm while committing counts 8, 9 and 10. (§§ 12022.53, subds. (a) & (b) and 1192.7, subd. (c)(8).) The jury could not reach an agreement on the firearm use allegations in connection with counts 1, 2, 4, 5, and 7. The People moved to dismiss those allegations; the court granted the motion. After defendant waived his right to a jury trial, the trial court found that defendant was on bail when he committed these offenses. At the sentencing hearing, the trial court sentenced defendant to a determinate term of 23 years and 4 months, and a consecutive indeterminate term of seven years to life. The court selected count 9, first degree robbery, as the principal term; the court imposed the upper term of six years, plus 10 years, consecutive, for the weapon use allegation. Thereafter, the court imposed the following sentence: (1) on counts 1, 2, 4 and 5, second degree robbery, a consecutive term of one year on each count (one-third the middle term); (2) on count 7, first degree robbery, a consecutive term of one year and four months (one-third the middle term); and (3) on count 8, kidnapping for robbery, a consecutive indeterminate term of seven years to life in prison. The court also imposed two years, consecutive, for the allegation that the crimes were committed while defendant was on bail. The sentences on count 10 and on the weapon use allegations with respect to counts 8 and 9 were stayed under section 654. The court explained that it had imposed the upper term because there was a threat of great violence and bodily harm, and imposed consecutive terms because defendant demonstrated planning, sophistication and professionalism in committing the numerous robberies.

II

DISCUSSION

A. Defendant Was Not Denied His Federal Constitutional Right to a Jury Trial and Due Process

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 and consecutive sentences violated his constitutional rights to a jury trial and due process.

The California Supreme Court in People v. Black (2005) 35 Cal.4th 1238 (Black),^[2] however, affirmed the constitutionality of the California sentencing scheme. (Id. at p. 1244.) The court summarized its decision as follows: â€