P. v. Torres
Filed 12/16/08 P. v. Torres CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. RODNEY CLIFFORD TORRES, Defendant and Appellant. | H033064 (Santa Clara County Super. Ct. No. CC317979) |
After a remand for resentencing, the trial court sentenced defendant Rodney Clifford Torres to an upper-term of imprisonment by following amendments to the California determinate sentencing law (amended DSL) that had become effective since the initial sentencing. On appeal, defendant contends that the sentence violates the federal prohibition against ex post facto laws and guarantee of due process. He concedes that we are required by People v. Sandoval (2007) 41 Cal.4th 825, to reject the contention. We affirm the judgment.
background
A jury convicted defendant of assault with a deadly weapon and felony hit and run. It also found true allegations that, in committing the assault, defendant personally inflicted great bodily injury (Pen. Code, 12022.7, subd. (a) [three-year sentence enhancement]) and personally inflicted great bodily injury causing the victim to suffer paralysis of a permanent nature (id., subd. (b) [five-year sentence enhancement]). The trial court sentenced defendant to 10 years in prison consisting of a four-year upper term for assault, a consecutive one-year term for hit and run, plus the five-year sentence enhancement (it stayed the three-year sentence enhancement). On appeal, defendant contended that (1) the trial court erred by failing to instruct the jury sua sponte in the language of CALJIC No. 4.45 (defense of accident or misfortune), (2) the evidence was insufficient to support the five-year enhancement, and (3) the trial courts imposition of the upper term was contrary to Blakely v. Washington (2004) 542 U.S. 296 (right to jury trial on aggravating facts that increase the penalty for a crime beyond the prescribed statutory maximum). In his reply brief, defendant conceded that People v. Black (2005) 35 Cal.4th 1238, which was decided after he and the People had filed their opening briefs, compelled us to reject the sentencing challenge. We then otherwise disagreed with defendant and affirmed the judgment. (People v. Torres (Oct. 20, 2005) H027516 [nonpub. opn.].) Our Supreme Court denied review, but the United States Supreme Court, having decided Cunningham v. California (2007) 549 U.S. 270, granted defendants petition for a writ of certiorari, vacated our opinion, and remanded the matter back to us for reconsideration in light of Cunningham. In response to Cunningham, our Legislature amended the determinate sentencing law, effective March 30, 2007. We then reconsidered defendants sentencing issue and agreed that Cunningham required resentencing. We therefore reversed the judgment and remanded for resentencing. (People v. Torres (May 18, 2007) H027516 [nonpub. opn.].) Our Supreme Court granted review (S153938) and transferred the matter back to us with directions to vacate our previous decision and to reconsider the cause in light of People v. Black (2007) 41 Cal.4th 799 and Sandoval. We therefore vacated our previous decision, reconsidered the sentencing issue, and reaffirmed that Cunningham required resentencing. We reversed the judgment and remanded for resentencing. (People v. Torres (Nov. 21, 2007) H027516 [nonpub. opn.].) The trial court thereafter followed the amended DSL and again imposed a 10-year sentence that included the same upper term for the assault conviction. Defendant here challenges the trial courts imposition of the upper term.
discussion
Defendant does not dispute that the resentencing proceedings conducted by the trial court complied with the amended DSL and the holding in Sandoval. He argues, however, that ex-post-facto and due-process principles prohibit application of the amended DSL to his case because he committed his offense before the Legislature amended the DSL. His underlying point is that the upper term is contrary to Blakely if it was imposed under a before-amended DSL.
Defendant recognizes that (1) Sandovalheld that application of the amended DSL to crimes committed before its enactment does not violate ex-post-facto or due-process principles, and (2) we are bound to follow Sandoval (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). He challenges Sandoval to preserve the issue for federal review. We follow Sandoval and reject defendants argument.
disposition
The judgment is affirmed.
Premo, J.
WE CONCUR:
Rushing, P.J.
Elia, J.
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