P. v. Ramirez

Filed 6/13/06 P. v. Ramirez CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 EIGHT

Appeal from a judgment of the Superior Court of Los Angeles County. David M. Mintz, Judge. Affirmed.

Donna L. Harris, 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, Margaret E. Maxwell, Supervising Deputy Attorney General, and Susan S. Kim, Deputy Attorney General, for Plaintiff and Respondent.

________________________

INTRODUCTION

Appellant Marta Ramirez challenges her voluntary manslaughter conviction on the ground the trial court's imposition of the upper term for a gun-use enhancement violated her right to a jury trial. We conclude appellant's claim has no merit, as the imposition of an upper term does not infringe upon the right to a jury trial.

BACKGROUND AND PROCEDURAL HISTORY

Appellant fired one close range shot at her husband's head and two contact shots at his chest as he lay asleep in their bed. She then turned herself in at a sheriff's substation.

A jury acquitted appellant of first and second degree murder, but convicted her of voluntary manslaughter. It also found she personally used a gun in the commission of the offense (Pen. Code, § 12022.5, subdivision (a)). Appellant was sentenced to 16 years in prison.

DISCUSSION

The trial court imposed the middle term of 6 years for manslaughter, but the upper term of 10 years for the gun-use enhancement. It explained that it found the following aggravating factors with respect to appellant's gun use: appellant fired the gun three times at very close range, the victim was particularly vulnerable at the time because he was asleep, appellant occupied a position of trust with respect to the victim, and she killed him in a place that potentially left his body for the children to discover.

Citing Blakely v. Washington (2004) 542 U.S. 296, appellant contends the imposition of the upper term for the gun-use enhancement violated due process, in that it was based upon facts found by the court, not a jury. Appellant's contention has no merit, as Blakely does not apply to the imposition of upper terms. (People v. Black (2005) 35 Cal.4th 1238, 1261.) We decline to consider appellant's contention that Black was wrongly decided. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

COOPER, P. J.

FLIER, J.

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