P. v. Ellis

Filed 3/19/07 P. v. Ellis CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Kathryne A. Stoltz, Judge. Affirmed.

Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.

______________________

The sole claim of error in this appeal is that imposition of the upper term sentence violated appellants federal constitutional rights to a jury trial and proof beyond a reasonable doubt under the Sixth Amendment and Blakely v. Washington (2004) 542 U.S. 296. We find no constitutional violation and affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Leonel Ellis was charged by information with one count of being a felon in possession of a firearm, a felony violation of Penal Code section 12021, subdivision (a)(1).^[1] It was alleged that he had been convicted of three prior felonies for purposes of the charged crime. It also was alleged that these felonies were prior strike convictions under sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i), and that one of the felony convictions came within the meaning of section 667.5, subdivision (b).

Before the start of trial, appellant admitted the prior felony convictions for all purposes. The jury found him guilty as charged. The court granted appellants motion to strike two of the alleged prior felony convictions, imposed the upper term of three years for the remaining crime, plus three years for the remaining strike prior and one year for the prior prison term enhancement. This is a timely appeal from the judgment.

DISCUSSION

Appellant claims imposition of the upper term violated his federal constitutional rights to a jury trial and proof beyond a reasonable doubt under the Sixth Amendment and Blakely v. Washington, supra, 542 U.S. 296.

In Apprendi v. New Jersey (2000) 530 U.S. 466, 490, the United States Supreme Court held: 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. In Blakely v. Washington, the Supreme Court explained: The relevant statutory maximum for Apprendi purposes is the maximum a judge may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (542 U.S. at p. 296.)

Any doubt that the California triad sentencing scheme, which permits judicial factfinding, is inconsistent with the holdings of Apprendi and Blakely was dispelled in Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856], decided January 22, 2007. The United States Supreme Court held that Californias determinate sentencing law, which authorizes a judge to find the facts permitting an upper term sentence, and to do so by a preponderance of the evidence, violates a defendants right to trial by jury.

This case presents two circumstances which avoid Blakely/Cunningham error. First, the only facts relied on by the court to impose the upper term were appellants prior criminal convictions, which Apprendi expressly exempts from the right to be decided by a jury. (Apprendi v. New Jersey, supra, 530 U.S. at p. 490: Other than the fact of a prior conviction . . . .) Second, appellant admitted the prior convictions [f]or all purposes at the start of trial. As Blakely instructs, the statutory maximum for Apprendi purposes is the maximum a judge may impose based on the facts reflected in the jury verdict or admitted by the defendant. (Blakely v. Washington, supra, 542 U.S. at p. 296.) The court was entitled to base its sentencing decision on the fact of the prior convictions, which were admitted by appellant.

There were no facts for the jury to decide with respect to appellants sentence, and thus no violation of appellants right to jury trial.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

MANELLA, J.

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^[1] All statutory references are to the Penal Code unless otherwise specified.