P. v. Taylor
Filed 6/3/08 P. v. Taylor CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. LAMONT TAYLOR, Defendant and Appellant. | D051475 (Super. Ct. No. SCD203521) |
APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed.
BACKGROUND
At about 1:00 a.m. on September 2, 2006, San Diego police officers responded to appellant's home to investigate a domestic violence report. The officers found appellant's wife crying. Her right eye was bruised and swollen shut. Her nose was cut in several places. Her left cheek was swollen and her right forearm was bruised. She received treatment at a hospital, where it was determined she suffered a fractured orbital pivot of her right eye. Her nose required several stitches. The injuries were caused by appellant, who punched her in the face several times.
On April 6, 2007, the District Attorney for San Diego County filed an information charging appellant in count 1 with corporal punishment to a spouse. (Pen. Code,[1] 273.5, subd. (a).) In count 2 it was alleged he committed assault by means of force likely to produce great bodily injury. ( 245, subd. (a)(1).) As to count 1 the information further alleged appellant was convicted of corporal punishment to a spouse within the previous seven years. ( 273.5, subd. (e)(1).) As to counts 1 and 2 it was alleged appellant personally inflicted great bodily injury ( 12022.7, subd. (e)) and that he was on felony probation at the time of the alleged offenses. ( 1203, subd. (k).)
The information alleged one prison prior ( 667.5, subd. (b), 668), one serious felony prior ( 667, subd. (a)(1), 668, 1192.7, subd. (c)), and one strike prior ( 667, subd. (b)-(i), 1170.12, 668).
On June 18, 2007, the trial court dismissed the alleged serious felony prior on motion by the prosecution, and immediately thereafter appellant pled guilty to counts 1 and 2 and admitted the truth of all the remaining allegations and prior convictions.
On July 18, 2007, appellant moved to dismiss the admitted strike prior on the ground it was based on an adjudication in juvenile court which did not afford him a jury trial. The trial court denied the motion on August 15, 2007. Appellant was sentenced to nine years in prison, comprised of a four-year term on count 1 (the two-year low term, doubled by the strike prior), a consecutive term of four years (middle term) for the great bodily injury enhancement, plus one consecutive year for the prison prior. As to count 2 the trial court imposed four years for the crime and a consecutive four-year term for the great bodily injury enhancement and stayed those counts pursuant to section 654.
DISCUSSION
Appellant's sole contention on appeal is that he was not afforded the right to a jury trial in regard to his juvenile prior, and therefore based on the principles expressed in recent case law, including Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348] and U.S.v. Tighe (9th Cir. 2001) 266 F.3d 1187, the prior could not be used to increase his sentence.[2]
As appellant notes, his argument has been rejected in a number of appellate decisions. (People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-834; People v. Lee (2003) 111 Cal.App.4th 1310, 1314-1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1075-1079; People v. Bowden (2002) 102 Cal.App.4th 387, 390-394).
Based upon this existing authority, we reject appellant's argument.[3]
Judgment affirmed.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
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[1] All further statutory references are to the Penal Code unless otherwise specified.
[2] The issue is currently before our Supreme Court in People v. Nguyen (2007) 152 Call.App.4th 1205, review granted October 10, 2007, in case number S154847
[3] We are aware another panel of this court has reached a result different than that reached here. (People v. Baltazar, D050137, unpublished opinion filed May 5, 2008.) We deny relief here without prejudice to appellant seeking further relief through the habeas corpus procedure should the California Supreme Court conclude prior juvenile adjudications cannot be used as strike priors.
