P. v. Bennett

Filed 4/2/08 P. v. Bennett CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, John A. Torribio, Judge. Affirmed.

Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

A jury found defendant Johnathan Oneal Bennett guilty of misdemeanor resisting arrest (Pen. Code,  148, subd. (a)(1)) and petty theft with a prior burglary conviction (id.,  484, subd. (a), 666), a felony. On the felony count, the trial court sentenced defendant to state prison for the upper term of three years based upon his prior criminal history; on the misdemeanor count, the court ordered defendant to serve 180 days in county jail and gave him credit for time served. On appeal, defendant challenges the constitutionality of his upper term sentence under Blakely v. Washington (2004) 542 U.S. 296. We affirm.

FACTS

On February 18, 2007, police arrested defendant after a witness observed him take an iPod and a pair of head phones from a fellow passenger on the Metro Blue Line train in Los Angeles County. Following his arrest, defendant resisted officers attempts to search him.

Defendant admitted that he previously was convicted of burglary and served time in state prison for that crime. He further admitted that he was on parole at the time of the current offenses.

DISCUSSION

The California Supreme Court recently held in People v. Black (2007) 41 Cal.4th 799 at page 813 that to the extent there are proper recidivist factors on which the trial court relied, a defendant is eligible to receive the upper term sentence without an additional jury finding, and imposition of that sentence does not violate his Sixth Amendment right to a jury trial. Defendants prior criminal history was a recidivist factor justifying imposition of the upper term sentence. (Id. at pp. 818-820; People v. Yim (2007) 152 Cal.App.4th 366, 370-371.) Defendants upper term sentence consequently is constitutional. (Black, supra, at p. 813.)[1] That defendant was on parole at the time he committed the current offenses (Cal. Rules of Court, rule 4.421(b)(4)) and that he served a prior prison term (id., rule 4.421(b)(3)) are further recidivist factors that justified the imposition of the upper term sentence.

The judgment is affirmed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

VOGEL, Acting P. J.

ROTHSCHILD, J.

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[1] We decline to reach the merits of defendants contention that the California Supreme Court in People v. Black, supra,41 Cal.4th 799 incorrectly interpreted Apprendi v. New Jersey (2000) 530 U.S. 466, Blakely v. Washington, supra, 542 U.S. 296 and Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856]. (Auto Equity Sales, Inc.v.Superior Court (1962) 57 Cal.2d 450, 455.)

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.