P. v. Martinez

Filed 2/26/09 P. v. Martinez CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

Appeal from a judgment of the Superior Court of Los Angeles County. Charlaine F. Olmedo, Judge. Affirmed.

Lori E. Kantor, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Karen Bissonnette, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

INTRODUCTION

A jury convicted Scott Allen Martinez of assault by means likely to produce great bodily injury (Pen. Code, 245, subd. (a)(1))[1]and found true that he personally inflicted great bodily injury ( 12022.7, subd. (a)). Martinez argues the imposition of the upper term violated his federal constitutional rights because it was based on factual findings by the court, not a jury. We conclude the trial court permissibly imposed the upper term.

BACKGROUND AND PROCEDURAL HISTORY

The People charged Martinez with assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1)) and mayhem ( 203). It was further alleged as to the assault charge that Martinez personally inflicted great bodily injury ( 12022.7, subd. (a)). Because the facts of the crime are irrelevant to resolution of the sole issue Martinez raises, we omit them.

The jury convicted Martinez of assault by means of force likely to produce great bodily injury and found the special allegation true; it acquitted him of mayhem.

The trial court sentenced Martinez to an aggregate term of seven years, comprised of the upper term of four years for the assault and a consecutive three years for the great bodily injury allegation.

As to the term for the assault, the trial court stated:

I am not going to decide necessarily the issue of whether Cunningham [v. California (2007) 549 U.S. 270 (Cunningham)] has been resolved with the subsequent changes in the statute or not. I am going to sentence you to the high term as opposed to the mid term, Mr. Martinez, based on one reason alone, and that is your prior record. And on that basis, you have six prior convictions dating back to 1980.

DISCUSSION

Relying on Cunningham, supra, 549 U.S. 270, Martinez claims Californias sentencing scheme was unconstitutional at the time of his conviction and the trial court erred by imposing the upper term. He is wrong.

In Apprendi v. New Jersey (2000) 530 U.S. 466, 490, the United States Supreme Court determined held that [o]ther 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. The term statutory maximum was later defined to mean the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (Blakely v. Washington (2004) 542 U.S. 296, 303.) In Cunningham, the United States Supreme Court applied these rules to Californias determinate sentencing law (DSL) and determined its rules violated a defendants Sixth and Fourteenth Amendment rights to a trial by jury insofar as it gave the judge, not the jury, the authority to find the facts that expose a defendant to an upper term sentence by a preponderance of the evidence and not by proof beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at p. 274.)

In response to these decisions, on March 30, 2007, the Governor signed into law Senate Bill No. 40, which amended the offending portion of the DSL ‑‑ former section 1170, subdivision (b). (Stats. 2007, ch. 3,  3, p. 7.) In turn, on July 19, 2007, the California Supreme Court judicially reformed the former sentencing law to conform to that new law. (People v. Sandoval (2007) 41 Cal.4th 825, 845.) The new version of section 1170, subdivision (b), allows a sentencing court to exercise its discretion to select among the three terms without making any factual finding. ( 1170, subd. (b); People v. Sandoval, supra, 41 Cal.4th at pp. 843-845.) Martinez was sentenced on November 16, 2007, well after these changes took place. Thus, the law that applied to him was the newer version of the statute, which has not been found to offend those constitutional precepts.

Aside from all this, the sentencing court here imposed the upper term based exclusively on Martinezs prior convictions. The use of that fact to select the upper term did not violate even the older system. (People v. Black (2007) 41 Cal.4th 799, 812-814.) Martinezs sentence was wholly appropriate.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BIGELOW, J.

We concur:

RUBIN, Acting P. J.

ONEILL, J.*

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

[1] All further statutory references are to the Penal Code, unless otherwise noted.

* Judge of the Ventura Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.