People v. Johnson

Filed 5/25/06

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

            APPEAL from a judgment of the Superior Court of Tulare County.  Gerald F. Seiver, Patrick J. O'Hara and Paul A. Vortmann, Judges.

            Robert D. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, J. Robert Jibson and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.

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Story continue from Part III……

The foregoing authorities deal with predicate prior serious felony convictions under the three strikes law.  (People v. Barragan, supra, 32 Cal.4th at p.  239; People v. Monge, supra, 16 Cal.4th at pp.  830-831; Cherry v. Superior Court, supra, 86 Cal.App.4th at p.  1301; see also People v. Henley (1999) 72 Cal.App.4th 555, 558, 566.)  We fail to see why the result should be different with respect to a predicate prior conviction under section 667.71.  Since retrial of the prior conviction allegation is not precluded by double jeopardy principles, a remand for that purpose is the appropriate remedy.  (People v. Jones, supra, 75 Cal.App.4th at p.  635.)  If the People are unable to prove appellant was previously convicted of violating section 289, subdivision (a), or if they elect to forgo retrial, appellant shall be resentenced without reference to section 667.71.

B.        Section 667.6

            The People sought imposition of consecutive sentences under subdivision (c) or (d) of section 667.6.  Appellant, by contrast, argued that section 667.6, subdivision (d) was unconstitutional under Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and that the requisite finding that the incidents occurred on separate occasions was never submitted to the jury.  Accordingly, he urged the court to impose concurrent terms.  The sentencing court determined that appellant was not entitled to a jury trial on the issue of consecutive versus concurrent sentences, then read a transcript of G.N.'s trial testimony and concluded that consecutive terms were mandatory under section 667.6, subdivision (d).  Appellant now challenges the sentencing court's imposition of consecutive terms.

            Section 667.6, subdivision (d) mandates the imposition of full consecutive terms for the offenses committed by appellant if the crimes, which involved the same victim, were committed â€