P. v. Hulton
Filed 10/16/08 P. v. Hulton CA6
Opinion following transfer by Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. EDWARD GILFILIAN HULTON, Defendant and Appellant. | H032924 (Santa Clara County Super. Ct. No. CC440394) |
Defendant Edward Gilfilian Hulton pleaded guilty to one count of arson (Pen. Code, 451, subd. (d)) and one count of making a criminal threat (Pen. Code, 422). The court imposed the three-year upper term for the arson count and a consecutive eight‑month term for the criminal threat count. In his first appeal, defendant contended that the trial court violated Penal Code section 654 when it imposed terms for both counts, and he claimed that the trial court violated his jury trial rights by imposing an upper term for the arson count based on factors that had not been found true by a jury or admitted by him. This court originally rejected both of his claims.
The California Supreme Court granted review, and it subsequently transferred the case back to this court for reconsideration in light of its intervening decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). On reconsideration, we concluded that defendants challenge to the imposition of the upper term had merit and remanded for resentencing in accordance with Sandoval.
The trial court imposed the same sentence on remand. The court cited four reasons for imposing the upper term for the arson count. First, defendant had suffered two prior convictions for driving under the influence, and he was on probation when he committed the arson. Second, the arson involved a potential threat of [a] great deal of harm and violence. Third, defendant showed no remorse for the arson a day after committing it, and said he would do it again. Finally, the court relied on the vulnerability of defendants mother, who had been asleep in her home when her car, parked in the homes driveway, was set afire. The court selected a consecutive term for the threat count because it is a separate crime involving separate allegations and separate elements.
Defendant appeals again, and claims that the trial courts imposition of an upper term for the arson count, and a consecutive term for the threat count, without a jury trial on the factors supporting those sentencing choices, violated his right to a jury trial. Defendant acknowledges that the resentencing proceedings conducted by the trial court complied with the California Supreme Courts holding in Sandoval. He also concedes that the California Supreme Court held in Black II that imposition of consecutive terms under section 669 does not implicate a defendants Sixth Amendment rights. (Black II, supra, 41 Cal.4th at p. 821.) Defendants arguments on appeal are directed at establishing that Sandoval and Black II were wrongly decided, but he accepts that we are bound by both of those decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) As we are bound by Sandoval and Black II, it would serve no purpose for us to analyze the merits of defendants arguments. Sandoval and Black II require us to reject defendants contentions.
The judgment is affirmed.
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Mihara, J.
WE CONCUR:
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Bamattre-Manoukian, Acting P.J.
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Duffy, J.
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