P. v. Castro
Filed 10/3/06 P. v. Castro 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 PEOPLE, Plaintiff and Respondent, v. ALFREDO RAMOS CASTRO, Defendant and Appellant. |
F049482
(Super. Ct. No. BF111240A))
O P I N I O N |
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.
Waldemar D. Halka, 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, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
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A Kern County jury found Alfredo Ramos Castro (Appellant) guilty of two counts of conspiracy (Pen. Code, § 182, subd. (a)(1)) and four counts of selling, transporting, furnishing, or offering methamphetamine (Health & Saf. Code, § 11379, subd. (a)) with two of the narcotics counts enhanced for exceeding a kilogram in weight (Health & Saf. Code, § 11370.4, subd. (b)(1)). The trial court denied probation and sentenced Appellant to nine years in state prison. The sentence consisted of a three-year middle term for one of the narcotics offenses with an additional three years for the weight enhancement, plus consecutive one-year subordinate terms for the remaining three narcotics offenses. The trial court also stayed three-year sentences for each of the three counts of conspiracy.
Appellant contends the trial court improperly imposed consecutive sentences by relying on an aggravating factor not found by the jury beyond a reasonable doubt. “ ‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ “ (Blakely v. Washington (2004) 542 U.S. 296, 301, citing Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) In imposing consecutive sentences, the trial court here reasoned that the four narcotics crimes “were committed at different times or separate places rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.”
Appellant candidly and correctly acknowledges his contention has been rejected by the California Supreme Court. “[T]he 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[[1]] right to a jury trial.” (People v. Black (2005) 35 Cal.4th 1238, 1244 (Black).) While we recognize the reasoning in Black is pending before the United States Supreme Court in Cunningham v. California, certiorari granted February 21, 2006, No. 05-6551, decisions of the California Supreme Court “are binding upon and must be followed by all the state courts of California.” (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Appellant instead “wishes to preserve the federal constitutional issues presented for future review in federal court.”
DISPOSITION
The judgment is affirmed without prejudice to any relief to which Appellant might be entitled after the United States Supreme Court determines the effect of Blakely v. Washington, supra, 542 U.S. 296 on California law in Cunningham v. California, No. 05-6551.
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* Before Vartabedian, Acting P.J., Cornell, J., and Hill, J.
[1] The Sixth Amendment to the United States Constitution provides in pertinent part that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury....” (U.S. Const., 6th Amend.) “[T]he ‘due process of law’ that the Fourteenth Amendment requires the States to provide to persons accused of crime encompasses the right to a trial by jury, Duncan v. Louisiana, 391 U.S. 145 (1968), and the right to have every element of the offense proved beyond a reasonable doubt, In re Winship, 397 U.S. 358 (1970).” (Apprendi v. New Jersey, supra, 530 U.S. at p. 477, fn. 3.)
