P. v. Ortiz
Filed 12/1/08 P. v. Ortiz CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, Plaintiff and Respondent, v. EDDIE ORTIZ, Defendant and Appellant. | C057947 (Super. Ct. No. CM020732) |
Convicted of attempted murder in 2005, defendant was sentenced to an aggregate term of 35 years to life in state prison, comprised of seven years for attempted murder, 25 years for using a firearm, and three years for defendants prior convictions. In 2006, defendant appealed his conviction, claiming, among other things, the trial court erred in sentencing him to 35 years to life in state prison. (People v. Ortiz (May 2, 2007) C051860 [nonpub. opn.] (opn. modified May 31, 2007).) In support of his claims defendant argued the trial courts failure to make any findings regarding his prior convictions must be treated as a finding that the allegations were not true. (People v. Ortiz, supra, C051860.) He also argued that a remand for resentencing would violate the double jeopardy provision of the federal and state Constitutions. (Ortiz, supra.) This court rejected both of defendants arguments and remanded the matter for resentencing. (Ortiz, supra.)
On remand, a jury trial was held on the prior conviction allegations, and the jury found each of them to be true. The trial court sentenced defendant again to an aggregate term of 35 years to life in state prison. Defendant appeals his sentence, making the same claims that we rejected in his prior appeal. As noted by the Attorney General, however, defendants claims are barred by the law of the case doctrine.
The law of the case doctrine states that when, in deciding an appeal, an appellate court states in its opinion a principle of rule of law necessary to its decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, . . . and upon subsequent appeal . . . . (Kowis v. Howard (1992) 3 Cal.4th 888, 892-893, internal quotations and citations omitted.) The law of the case doctrine applies to criminal as well as civil matters . . . and to decisions of intermediate appellate courts as well as courts of last resort. (People v. Shuey (1975) 13 Cal.3d 835, 841.)
There are exceptions to the law of the case doctrine; however, defendant raises none of them in his appeal. (See Meyer v. Byron Jackson, Inc. (1984) 161 Cal.App.3d 402, 409 [exceptions include: intervening change in the law, new precedent by controlling authority, or application leading to harsh or inequitable result].) Indeed, defendant acknowledges his claims are not cognizable and states he is raising them solely to preserve the issues for further review in the California Supreme Court or a federal court.
DISPOSITION
The trial court judgment is affirmed.
SIMS , Acting P. J.
We concur:
RAYE , J.
MORRISON , J.
Publication courtesy of San Diego free legal advice.
Analysis and review provided by Santee Property line attorney.
