P. v. Chavez

Filed 10/18/06 P. v. Chavez CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Walter A. Chavez appeals the sentence imposed following his guilty-plea conviction for assault with a deadly weapon by means of force likely to cause great bodily injury, in violation of Penal Code section 245(a)(1).[1] We affirm by memorandum opinion.[2]

Chavez was one of the assailants in an attack on three young Santa Rosa high school students by a group of gang members. The high school students were severely beaten in the attack. Witnesses identified Chavez as the assailant who struck two of the victims in the head with a brick. Pursuant to a negotiated agreement, Chavez pled guilty to counts one and two of the Information filed on June 1, 2005, charging him with assault with a deadly weapon (a brick) by means of force likely to produce great bodily injury. At the change of plea hearing held on October 5, 2005, the trial court indicated a top sentence of eight years.

At the sentencing hearing on December 13, 2005, the trial court denied probation, and imposed a total sentence of eight years imprisonment. On count 2, the trial court imposed the aggravated term of 4-years plus a three-year enhancement under section 12022.7, subdivision (a) (use of a weapon), for a total term of seven years. The trial court found the aggravated term on count two to be appropriate “based on the violence of the act and vulnerability of the victim.” As to count one, the court imposed one third of the mid-term of three years for a sentence of one year, to be served consecutively to the sentence imposed on count two. The People dismissed counts three (battery, in violation of section 242) and four (participation in a criminal street gang, in violation of section 186.22, subdivision (a)). Also, the court struck the gang enhancement under section 186.22, subdivision (b)(1), under which Chavez faced exposure to a further consecutive ten-year sentence. Abstract of Judgment was filed on December 14, 2005, and Chavez filed a timely notice of appeal on January 11, 2006.

Chavez contends the aggravated term imposed by the trial court on count two violates the Sixth Amendment and due process under principles articulated in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Chavez concedes this contention is foreclosed by the Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238, 1244 [concluding “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“]), but seeks “to preserve it for federal court review.” However, the opinion in Blakely was filed on June 24, 2004, almost 18 months before Chavez’s sentencing hearing on December 13, 2005, yet Chavez failed to object on Blakely grounds at sentencing. Instead, he accepted the benefits of his negotiated plea bargain, as a consequence of which the trial court imposed the indicated top sentence of eight years, struck the gang enhancement, and the People dismissed counts three and four. Accordingly, we agree with Respondent that Chavez has forfeited his right to raise a Blakely argument on appeal. (See People v. Hill (2005) 131 Cal.App.4th 1089, 1103 [Blakely issue not raised in the trial court subject to forfeiture].)

DISPOSITION

The judgment is affirmed.

_________________________

Parrilli, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Siggins, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line Lawyers.

[1] Further statutory references are to the Penal Code.

[2] As this case presents only the ‘review for correctness’ function of this court, and presents no novel issues, a memorandum opinion is appropriate (People v. Garcia (2002) 97 Cal.App.4th 847, 850-852.)