P. v. Ortiz

Filed 2/25/08 P. v. Ortiz 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant Sergio Ortiz brings this appeal from a judgment of conviction entered after this court reversed the original judgment in part and remanded for retrial or resentencing. The trial court conducted no further trial, instead resentencing defendant to a term including consecutive sentences on various counts. The sole question on this appeal is whether the imposition of consecutive sentences based on facts not found by a jury beyond a reasonable doubt violated the federal constitutional proscription against criminal punishment not predicated on jury findings. Since this appeal was filed, the California Supreme has authoritatively answered this question in the negative. (People v. Black (2007) 41 Cal.4th 799, 923 (Black).) As defendant acknowledges, that decision is binding on us. We are therefore obliged to affirm the judgment.

Background

As set forth in our original opinion, defendant was charged with sex-related conduct felonies in 27 counts, 24 of them against Janette Doe and 3 of them against her sister, Samantha Doe. (People v.Ortiz (Aug. 1, 2006, H028786) [nonpub. opn.].) The jury found him guilty of all charged offenses against Janette, but acquitted him of two of the three charges against Samantha. Based in part upon the sustained charge against Samantha, the court imposed a sentence of 45 years to life. We reversed the conviction on that count based upon error in the exclusion of evidence by which the defense had sought to impeach Samanthas credibility. We directed the trial court to either dismiss that count, along with findings that defendant had committed offenses against multiple victims, or conduct a retrial in accordance with the views expressed in our opinion. (Order modifying opinion filed Aug. 29, 2006.)

On remand the court dismissed the count against Samantha, struck the multiple victim findings, and scheduled the matter for resentencing. In a sentencing memorandum, the prosecutor urged the court to impose consecutive sentences on the remaining counts  because the crimes involved separate acts of violence or threats of violence ([Cal. Rules of Court, rule 4.425](a)(2)), and because the crimes were committed at different times, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior ([Cal. Rules of Court, rule 4.425](a)(3)). Defense counsel filed a reply memorandum, contending that under the reasoning of Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856], a trial courts decision to impose consecutive sentences violates the defendants Sixth Amendment right to jury trial unless the decision is legally justified by facts found by the jury.

At the sentencing hearing on March 20, 2007, the court alluded to a preexisting tentative decision to impose consecutive sentencing. It stated that it had elected to impose consecutive sentences after reviewing the available authorities, including a Court of Appeal decision since rendered non-citable by grant of review. (People v. Hernandez (Feb. 26, 2007, C053061) [nonpub. opn.] review granted May 9, 2007, dismissed Sep. 12, 2007, S151549.) It then sentenced defendant to a mitigated term of three years on count 2, and consecutive two-year terms on each of counts 3 through 11, concurrent terms on counts 12 through 24, and a consecutive term of 15 years to life on count 1, for a total term of 15 years to life consecutive to 21 years.

Defendant filed this timely appeal.

Discussion

The contention put forward by defendant was directly addressed and rejected in Black, supra, 41 Cal.4th at pages 806, 821, 823. As defendant acknowledges, that decision is binding on us. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We must therefore conclude that the trial courts imposition of consecutive sentences based on facts not found by the jury did not offend the Sixth Amendment. Accordingly defendant has failed to establish error.

Disposition

The judgment is affirmed.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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