P. v. Falcon
Filed 10/26/06 P. v. Falcon CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 THREE
| THE PEOPLE, Plaintiff and Respondent, v. RICHARD CRUZ FALCON, Defendant and Appellant. | B188133 (Los Angeles County Super. Ct. No. KA072025) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Abraham Khan, Judge. Affirmed.
Ann Krausz, 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, Assistant Attorney General, Mary Sanchez, Chung L. Mar and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Richard Cruz Falcon appeals the judgment entered after conviction by jury of possession of methamphetamine, possession of a smoking device, a misdemeanor, and being under the influence of a controlled substance, also a misdemeanor. (Health & Saf. Code, §§ 11377, subd. (a), 11364, subd. (a), 11550, subd. (a).) Falcon admitted a prior conviction within the meaning of the Three Strikes law (Pen. Code, §§ 667, subs. (b)-(i), 1170.12) and admitted a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). The trial court sentenced Falcon to the upper term of three years for possession of methamphetamine, doubled to six years on account of the prior strike conviction, and struck the one-year enhancement for the prior prison term.
Falcon contends imposition of the upper term violated his federal right to a jury trial. We reject this assertion and affirm the judgment.
BACKGROUND
In addition to the charged offenses, the information in this case alleged Falcon had one prior conviction of making a criminal threat in violation of Penal Code section 422 in March of 2001 and two prior convictions of that offense in August of 2002. The information further alleged Falcon had served a prison term as a result of the 2002 convictions.
Following his conviction by jury of the charged offenses, Falcon admitted one of these prior convictions and the prior prison term. In exchange, the People struck the remaining alleged prior convictions. The trial court indicated it was selecting the upper term because Falcon was on parole at the time of this offense, Falcon had a substantial record of criminal activity, he had served a prior prison term and the People had struck two prior convictions that would have rendered Falcon eligible for a life sentence in this case. The trial court then sentenced Falcon to the upper term of three years for possession of methamphetamine, doubled to six years under the Three Strikes law, and struck the one-year enhancement for the prior prison term.
DISCUSSION
Falcon contends that because none of the facts relied upon by the trial court to impose the upper term was found true by a jury beyond a reasonable doubt, imposition of the upper term violated his right to trial by jury. (Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]; Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435].) Falcon concedes the California Supreme Court resolved this issue adversely to him in People v. Black (2005) 35 Cal.4th 1238, and this court is bound by Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Falcon indicates he is pursuing this claim in order to exhaust his state remedies and preserve the issue for federal review as the matter is one of federal constitutional dimension.[1]
In addition to rejecting Falcon’s contention based on the authority of Black, we also note that Falcon did not object on Blakely grounds at the time of sentencing. (See People v. Saunders (1993) 5 Cal.4th 580, 590 & fn. 6; People v. Hill (2005) 131 Cal.App.4th 1089, 1103.) Rather, he specifically waived his right to a jury trial on the prior conviction and the prior prison term allegations. The factors relied upon by the trial court to impose the upper term, including the fact Falcon was on parole, his substantial record of criminal activity and the service of a prior prison term, all related to Falcon’s prior conviction and his prior prison term, both of which Falcon admitted. Because Falcon’s admission of a prior conviction and a prior prison term provided adequate factors in aggravation to support imposition of an upper term (People v. Osband (1996) 13 Cal.4th 622, 728), reversal of the sentence is not required.
In sum, we conclude Falcon is unable to demonstrate error in the trial court’s selection of the upper term of imprisonment for the current offense.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
We concur:
CROSKEY, J.
ALDRICH, J.
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[1] The United States Supreme Court has granted certiorari in People v. Cunningham (Apr. 18, 2005, A103501) [nonpub. opn.], certiorari granted sub nom. Cunningham v. California, Feb. 21, 2006, No. 05-6551, --- U.S. ----, [126 S.Ct. 1329, 164 L.Ed.2d 47] on the issue of 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.
