P. v. Moore

Filed 7/31/06 P. v. Moore 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Leon Fredrick Moore appeals the judgment following his conviction for sending a threatening letter for the purpose of extortion. (Pen. Code, § 523.)[1] He contends that imposition of the upper term sentence violated his constitutional right to a jury trial. We affirm.

PROCEDURAL HISTORY

Moore was convicted by jury of two counts of theft or embezzlement from an elder, and one count of sending a threatening letter to the victim for the purpose of extortion. (§§ 368, subd. (d), 523.) The trial court found true the allegations that Moore had suffered three prior convictions, including one strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and two convictions involving prison sentences (§ 667.5, subd. (b)). In an unpublished opinion, we reversed the judgment on the two counts of elder abuse, affirmed the judgment on the count of extortion by threatening letter, and remanded for resentencing. (People v. Moore (Mar. 16, 2005, B168043).)

After remittitur, Moore was resentenced to eight years in state prison for extortion by threatening letter. The sentence consisted of the upper term of three years doubled as a second strike offense, plus two, one-year enhancements for Moore's prior prison sentences. (§ 667.5, subd. (b).)

DISCUSSION

Moore contends that the court erred by sentencing him to the upper term of three years by making findings on aggravating sentencing factors that were not tried by a jury in violation of his constitutional right to a jury trial. (Blakely v. Washington (2004) 542 U.S. 296.) We reject this contention based on the opinion of our Supreme Court in People v. Black ( 2005) 35 Cal.4th 1238, 1244, 1253-1254, 1261, 1264.

In Black, the California Supreme Court decided the effect of the United States Supreme Court decisions in United States v. Booker (2005) 543 U.S. 220, Blakely v. Washington, supra, 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466, on California's determinate sentencing law. The court 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." (People v. Black, supra, 35 Cal.4th at p. 1244.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Mark S. Arnold, Judge

Superior Court County of Los Angeles

______________________________

David Christian Read, 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, Robert F. Katz, Supervising Deputy Attorney General, Lauren E. Dana, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless otherwise stated.