P. v. Barnes

Filed 6/29/06 P. v. Barnes CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Levertis Barnes appeals from the judgment entered after a jury convicted him of carjacking (Pen. Code, § 215, subd. (a)),^[1] attempted carjacking (§§ 215, subd. (a), 664), and assault (§ 240). After Barnes waived his right to have a jury decide the truth of the allegations that he had served four prior prison terms within the meaning of section 667.5, subdivision (b), the court found three of the allegations to be true. Barnes was sentenced to a total prison term of twelve years, consisting of the upper term of nine years on the carjacking count, plus one year for each of the prison priors. He contends that his upper term sentence violated his Sixth Amendment right to a jury trial, pursuant to Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We affirm.

FACTS AND PROCEDURAL HISTORY

Because the facts underlying the conviction are irrelevant to the appeal, we need not discuss them in detail. On June 11, 2004, Barnes attempted to carjack a vehicle and physically assaulted his victim in the process. When the victim refused to surrender her vehicle, Barnes proceeded to carjack a nearby van. Shortly thereafter, Barnes lost control of the van and crashed into another vehicle.

Prior to trial, the prosecutor amended the information to allege aggravating factors in the event that Blakely required a jury trial on those factors. Barnes opposed the amendment as untimely. During the trial, the California Supreme Court concluded that Blakely does not require a jury trial on aggravating factors (People v. Black (2005) 35 Cal.4th 1238 (Black)), and the court accordingly struck those factors from the information. At sentencing, the court imposed the upper term on the carjacking count on its findings that the crime involved great violence, that the victim was particularly vulnerable, and that Barnes's prior adult convictions were numerous and of increasing seriousness. (Cal. Rules of Court, rule 4.421(a)(1), (3), & (b)(2).) In imposing that sentence, the court stated, "Because the court wants there to be no ambiguity whether there's a reasonable opportunity to object to the court's sentencing choices . . . , I'll invite objections to the court's sentence at this point." In response to that invitation, Barnes's attorney did not contend that the court lacked the authority to impose the upper term pursuant to Blakely. This appeal followed.

DISCUSSION

Barnes contends that by imposing an upper term sentence based on aggravating factors not determined by the jury beyond a reasonable doubt, the trial court violated his Sixth Amendment right to a jury trial under the rules announced in Apprendi v. New Jersey (2000) 530 U.S. 466, and Blakely. He also argues that our Supreme Court erred in reaching a contrary conclusion in Black, supra, 35 Cal.4th 1238.^[2] The People respond that Barnes forfeited his right to raise the issue on appeal because his attorney failed to object under Blakely at sentencing, and that in any event we are bound by the principle of stare decisis to follow Black.

We agree with the People on both points. Blakely was decided over a year before Barnes was sentenced, and he was expressly provided the opportunity to raise any objections to the imposition of the upper term. Because counsel did not assert below that the upper term was proscribed by Blakely, he forfeited his right to raise that argument on appeal. (See People v. Hill (2005) 131 Cal.App.4th 1089, 1103.) Moreover, we have no authority to disagree with Black, which held that "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant's Sixth Amendment right to a jury trial." (Black, supra, 35 Cal.4th at p. 1244; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) For the same reason, we reject Barnes's contention that the court was required to obtain a personal waiver of his purported right to have a jury decide the truth of the aggravating factors alleged in the information.

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

David M. Mintz, Judge

Superior Court County of Los Angeles

______________________________

Phillip I. Bronson, 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, Lance E. Winters, Supervising Deputy Attorney General, Lawrence M. Daniels, Richard T. Breen, Deputy Attorneys General, for Plaintiff and Respondent.

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^[1] All statutory references are to the Penal Code.

^[2] The United States Supreme Court has agreed to decide whether Blakely applies to California's determinate sentencing scheme. (Cunningham v. California (2006) ___ U.S. ___ [126 S.Ct. 1672, 164 L.Ed.2d 395].)