P. v. Hernandez

Filed 6/16/06 P. v. Hernandez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr., Judge. Affirmed.

Stephen M. Hinkle, 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, Assistant Attorney General, Peter Quon, Jr., and Erika Hiramatsu, Deputy Attorneys General, for Plaintiff and Respondent.

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Introduction

Defendant Manuel Hernandez raises a single issue on appeal: Did the trial court violate his constitutional rights by imposing the upper term sentence for driving under the influence of alcohol, based on aggravating factors not presented to a jury? In People v. Black (2005) 35 Cal.4th 1238, 1254, the California Supreme Court concluded there is no federal constitutional right to a jury trial on factfinding related to aggravating factors used by the trial court to impose the upper term sentence under California's determinate sentencing law. Because defendant raises no issue unresolved by People v. Black, we must affirm the judgment.

Statement of Facts[1]

Defendant was convicted by a jury of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a) [count 1]) and driving while intoxicated (id., § 23152, subd. (b) [count 2]), both felonies. Defendant admitted he had been convicted of a felony violation of Vehicle Code section 23152 within the preceding 10 years. The trial court sentenced defendant to the upper term of three years in state prison on count 1, and stayed the sentence on count 2 pursuant to Penal Code section 654. Defendant timely appealed from the judgment.

Discussion

Defendant argues his sentence violates the Sixth Amendment to the United States Constitution and Blakely v. Washington (2004) 542 U.S. 296 (Blakely), because the trial court sentenced him to a term above the statutory maximum based on facts he did not admit and the jury did not find beyond a reasonable doubt. In Blakely, the defendant made factual admissions in pleading guilty to kidnapping. (Blakely, supra, 542 U.S. at pp. 298-299.) Those admissions justified a maximum sentence of 53 months. (Id. at p. 299.) Washington state law, however, permitted the trial court to determine the defendant had acted with â€