P. v. Hayes
Filed 8/15/06 P. v. Hayes CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
THIRD APPELLATE DISTRICT
(Sacramento)
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| THE PEOPLE, Plaintiff and Respondent, v. CLARENCE JOSEPH HAYES, Defendant and Appellant. | C048087
(Super. Ct. No. 98F00835)
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Defendant Clarence Joseph Hayes was convicted after a jury trial of burglary (count one), two counts of rape (counts two and five), penetration by foreign object (count three), forcible oral copulation (count four), and robbery (count six). The jury also found he had committed the rapes during the commission of a burglary and that he bound or tied the victim during the forcible oral copulation. The trial court found true a prior strike conviction for rape in 1988.
In an earlier appeal, we reversed the trial court's finding that a prior 1982 conviction for robbery constituted a strike based on insufficiency of evidence and remanded for retrial on the strike. In all other respects, the judgment was affirmed. (People v. Hayes (July 1, 2002, C032730) [nonpub. opn.].) The prosecution elected not to retry the strike on remand and defendant was resentenced.
In this appeal, defendant contends: (1) the trial court erred in imposing fully consecutive sentences on counts three, four, and five; (2) imposition of fully consecutive and upper terms based upon factors not presented to the jury violated the Sixth Amendment of the United States Constitution as interpreted in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]; and (3) his 115-years-to-life sentence constitutes cruel and unusual punishment. We affirm.
BACKGROUND
On remand, the trial court sentenced defendant as follows:
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