P. v. Stubbs

Filed 8/3/07 P. v. Stubbs CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.

Terrence Verson Scott, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

In an earlier opinion (People v. Stubbs (Sept. 15, 2005, G032482) [nonpub. opn.]), we affirmed Tony Stubbss convictions on two counts of carjacking (Pen. Code,  215, subd. (a)), but accepted the Attorney Generals concession and reversed a finding that defendant suffered a strike under the Three Strikes law for a prior juvenile delinquency adjudication for carjacking in 1996. The prosecutor elected not to retry defendant on the prior conviction allegation, and the trial court resentenced defendant on January 6, 2006. As it had at the original sentencing, the court imposed the upper nine-year term for carjacking on count one, citing several aggravating factors relating to defendant and the crime. (Cal. Rules of Court, rule 4.421(b)(1) [defendant engaged in violent conduct indicating a serious danger to society]; rule 4.421(b)(2) [defendants prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness]; rule 4.421(a)(1) [crime involved threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness, or callousness].) The court added a consecutive 20-month term for count 2.

Defendant argues the trial court erred by imposing an upper term of imprisonment on count one in violation of Blakely v. Washington (2004) 542 U.S. 296. (See also United States v. Booker (2005) 543 U.S. 220; Apprendi v. New Jersey (2000) 530 U.S. 466.) The United States Supreme Court has held Californias determinate sentencing law violates a defendants Sixth and Fourteenth Amendment right to a jury trial to the extent it permits a trial court to impose an upper term based on facts found by the court rather than by a jury beyond a reasonable doubt. (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).)

The California Supreme Court has recently decided that if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. (People v. Black (July 19, 2007, S126182) ___ Cal.4th ___.) The court specifically held a defendants criminal history renders him eligible for the upper term sentence, and that the trial court rather than a jury may properly decide whether a defendants convictions are numerous or increasingly serious. (Id. at p. ___; People v. McGee (2006) 38 Cal.4th 682.)

Defendant did not object in the trial court, and does not argue here, that the trial courts finding concerning his criminal history was factually inadequate. Consequently, the trial courts imposition of the upper term for count 1 did not violate Cunningham.

Judgment affirmed.

ARONSON, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

FYBEL, J.

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