P. v. Case

Filed 7/26/06 P. v. Case CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. John W. DeGroot, Judge.

Linda J. Zachritz, 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, and J. Robert Jibson, Deputy Attorney General, for Plaintiff and Respondent.

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A jury convicted appellant, Michael Case, of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). In a separate proceeding, Case admitted a prior prison enhancement (Pen. Code, § 667.5, subd. (b)) and allegations that he had a prior conviction within the meaning of the three strikes law (Pen. Code, § 667, subds. (b)-(i)).

On appeal, Case contends the court committed Blakely error.^[1] We will affirm.

FACTS

On June 24, 2004, Case and another man were outside a house in Chowchilla when Chowchilla Police Officer Brian Esteves approached them. As Case started walking toward the front door of the house, the officer asked him to stop so he could talk with him. Case began walking back toward the officer and threw away a pouch and a balled up piece of paper. The officer retrieved the crumpled paper and found a syringe containing 30 units of a methamphetamine solution.

On April 13, 2005, the court sentenced Case to an aggregate seven-year term: the aggravated term of three years, doubled to six years because of Case's prior strike conviction, and a one-year prior prison term enhancement. In imposing the aggravated term, the court found the following aggravating circumstances: 1) Case's prior convictions were numerous; 2) he served prior prison terms that were not charged as enhancements; 3) he was on parole when he committed the underlying offense; and 4) Case's prior performance on parole and probation had been unsatisfactory.

DISCUSSION

Case contends that his sentence violates the Sixth Amendment as interpreted in Blakely v. Washington, supra, 542 U.S. 296, because the court imposed consecutive sentences based on facts not found true by a jury beyond a reasonable doubt. Recently, our Supreme Court issued its opinion in People v. Black (2005) 35 Cal.4th 1238. The court held that the imposition of upper terms under California law is unaffected by Blakely and the related decision in United States v. Booker (2005) 543 U. S. 220. (People v. Black, supra, 35 Cal.4th 1238, 1257, 1258.) Accordingly, we must reject Case's argument.

DISPOSITION

The judgment is affirmed.

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^*Before Vartabedian, Acting P.J., Wiseman, J., and Cornell, J.

^[1] Blakely v. Washington (2004) 542 U.S. 296.