P. v. Ferrel

Filed 9/29/06 P. v. Ferrel CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

AUGUSTINE FERREL,

Defendant and Appellant.

E039225

(Super.Ct.No. FSB049739)

OPINION

APPEAL from the Superior Court of San Bernardino County. John N. Martin, Judge. Affirmed in part and reversed in part with directions.

Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch and Rhonda Cartwright-Ladendorf, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

Pursuant to a plea agreement, defendant pleaded guilty to two counts of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) (counts 1 and 2), one count of driving while under the influence causing injury (Veh. Code, § 23153, subd. (a)) (count 3), and one count of driving with a 0.08 percent blood alcohol causing injury (Veh. Code, § 23153, subd. (b)) (count 4). As to one of the manslaughter counts, defendant also admitted a multiple victim enhancement allegation (Veh. Code, § 23558). In exchange, the parties agreed the remaining charge of possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) (count 5) would be dismissed, and defendant would be sentenced to a maximum term of 14 years in state prison.

At sentencing, the trial court sentenced defendant to a total term of 14 years 4 months in state prison as follows: the upper term of 10 years on count 1; a consecutive term of 2 years (one-third the midterm) on count 2; a consecutive term of 8 months (one-third the midterm) on count 3; a consecutive term of 8 months (one-third the midterm) on count 4; and a consecutive one-year term for the multiple victim enhancement.

On appeal, defendant contends (1) the trial court erred in imposing the sentence of 14 years 4 months when the maximum term specified in the plea agreement was 14 years; and (2) defendant was deprived of his federal and state constitutional rights to a jury trial and due process under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed the upper term on count 1. We agree with the parties that the matter should be remanded to allow the trial court to sentence defendant in accordance with the plea agreement. We reject defendant’s remaining contention.

FACTUAL BACKGROUND^[1]

On May 2, 2005, two San Bernardino police officers who were stopped at an intersection observed a car driven by defendant travel rapidly through the intersection and strike the back of a parked tractor-trailer. Defendant’s front seat passenger, an adult female, was killed instantly as a result of massive head trauma. The back seat passenger, the female’s four-year-old son, who was not wearing a seat belt, suffered major head injuries and died the following day. Defendant was seriously injured and taken to the hospital, where his blood was drawn about an hour after the accident. Defendant’s blood alcohol measured at 0.22 percent. Police officers later found a baggie containing methamphetamine in defendant’s pant pocket.

DISCUSSION

A. Violation of Plea Agreement

The written plea form, as well as the oral recitation of the plea agreement, provided a sentencing range of 4 years minimum to 14 years maximum. Defendant argues, and the People correctly concede, that the trial court exceeded this range when it sentenced defendant to an aggregate term of 14 years 4 months. We agree and will direct the trial court to sentence defendant in accordance with the plea agreement.

B. Violation of Blakely and Apprendi

Defendant also contends the trial court improperly imposed the upper term on count 1 because the court based its decision on factors not found true by a jury, as allegedly required by Apprendi, supra, 530 U.S. 466 and Blakely, supra,. 542 U.S. 296. He thus claims the court violated his constitutional rights to a jury trial and due process. Assuming, without deciding, defendant did not waive this issue on appeal, we reject defendant’s contention.

As defendant acknowledges, our Supreme Court decided this issues adversely to him in People v. Black (2005) 35 Cal.4th 1238.^[2] The court summarized its decision as follows: “[This case] presents the specific questions whether a defendant is constitutionally entitled to a jury trial on the aggravating factors that justify an upper term sentence or a consecutive sentence. For the reasons discussed below, we conclude 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.” (Id. at p. 1244.)

We are aware that the United States Supreme Court granted review of People v. Cunningham. (See People v. Cunningham (Apr. 18, 2005, A103501) [nonpub. opn.], cert. granted Feb. 21, 2006, No. 05-6551, sub nom. Cunningham v. California (2005) ___ U.S. ___ [___ S. Ct. ___ ].)^[3] At the present time, however, Black is the controlling authority in California. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.) Therefore, based on the holding in Black, we reject defendant’s argument.

III

DISPOSITION

The matter is remanded in accordance with the opinion. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

We concur:

HOLLENHORST

Acting P.J.

KING

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^[1] The factual background is taken from the probation officer’s report.

^[2] Petition for certiorari was filed in the Black case on September 28, 2005, and is pending.

^[3] The issue to be considered by the United State Supreme Court is whether California’s sentencing scheme, which allows judges to impose enhanced sentences based on their determination of facts not found by the jury, violates the Sixth Amendment.

Description	Pursuant to a plea agreement, defendant pleaded guilty to two counts of gross vehicular manslaughter while intoxicated, one count of driving while under the influence causing injury, and one count of driving with a 0.08 percent blood alcohol causing injury. As to one of the manslaughter counts, defendant also admitted a multiple victim enhancement allegation. In exchange, the parties agreed the remaining charge of possession of a controlled substance would be dismissed, and defendant would be sentenced to a maximum term of 14 years in state prison. On appeal, defendant contends (1) the trial court erred in imposing the sentence of 14 years 4 months when the maximum term specified in the plea agreement was 14 years; and (2) defendant was deprived of his federal and state constitutional rights to a jury trial and due process when the trial court imposed the upper term on count 1. Court agreed with the parties that the matter should be remanded to allow the trial court to sentence defendant in accordance with the plea agreement. Court rejected defendant's remaining contention.
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