P. v. Abanico
Filed 1/9/09 P. v. Abanico 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. ALFREDO VIERRA ABANICO, Defendant and Appellant. | H032485 (Monterey County Super. Ct. No. SS042287) |
Statement of the Case
A jury convicted Afredo Vierra Abanico and his codefendant Vincent Lopez of five counts of kidnapping for purposes of robbery, five counts of kidnapping to facilitate a carjacking, and street terrorism, and it further found that they personally used firearms and committed the crimes for the benefit of a criminal street gang. After a court trial, the court found that both had served prior prison terms and that Lopez had a prior strike conviction. (Pen. Code, 209, subd. (b)(1), 209.5, subd. (a), 186.22, subds. (a) & (b)(1), 12022.5, subd. (a)(1), 12022.53, subds. (b) & 12022.5, subd. (a)(1), 667.5, subd. (b), & 1170.12, subd. (c)(1).)[1]
The court sentenced Abanico to two consecutive terms of 15 years to life for the two counts of kidnapping for robbery as enhanced by the gang findings plus two consecutive 10-year firearm enhancements. The court imposed identical concurrent terms for the remaining three counts of kidnapping for robbery and five counts of kidnapping to facilitate carjacking, and a two-year term for street terrorism plus a one-year term for the prison enhancement, staying the terms for kidnapping-carjacking and street terrorism under section 654.
On appeal from the judgment, this court found insufficient evidence to support the gang enhancements and struck them. We reversed the judgment and remanded the matter for resentencing. (People v. Abanico (July 6, 2007, H029034) [nonpub].)[2] On remand, the court sentenced defendant to two consecutive terms of seven years to life for two counts of kidnapping for robbery plus two consecutive 10-year firearm enhancements. The court imposed identical concurrent terms for the remaining three counts of kidnapping for robbery and five counts of kidnapping to facilitate carjacking, staying the terms for kidnapping-carjacking under section 654, and an upper term of three years for street terrorism plus a one-year enhancement for the prior prison-term.
On appeal from the judgment, defendant claims the court violated his right to a jury trial by imposing the upper term for street terrorism based on factors that the jury did not find and he did not admit.
Background[3]
On remand for resentencing, the trial court imposed the upper term for street terrorism for two reasons: (1) the severity of the crimes that this street terrorism was associated with and (2) he received concurrent terms on three counts of kidnapping for robbery but could have been given consecutive terms.
Discussion
Defendant contends that the trial courts use of factors not found by the jury or admitted by him to impose the upper term violated his constitutional right to a jury trial.
In Cunningham v. California (2007) 549 U.S. 270, the United States Supreme Court held that Californias Determinate Sentencing Law (DSL) violated the Sixth Amendment right to a jury trial insofar as it authorized a trial court, and not the jury, to find facts that exposed the defendant to elevated upper term sentence. (Cunningham, supra, 549 U.S. at p. 860.)
In response, the Legislature amended the DSLspecifically, section 1170, subdivision (b)to cure the defects identified by the Cunningham Court. As amended, the DSL provides three terms of punishment for felony offenses and authorizes the court to exercise its discretion in selecting the appropriate sentence that will best serve the ends of justice.
Defendant acknowledges that, under the amended DSL, the trial court had discretion to impose the upper term even if it did so based on factors not found by the jury. However, he claims that, because he committed his offenses before the Legislature amended the law, its application to him violated the proscription against ex post facto laws. (U.S. Const., art. 1, 10; Cal. Const. art. 1, 9.)
Defendant raises this claim only to preserve it for federal review because, as he acknowledges, the California Supreme Court rejected the same claim in People v. Sandoval (2007) 41 Cal.4th 825, and we are bound to follow Sandoval. (Auto Equity Sales, Inc. v.Superior Court (1962) 57 Cal.2d 450, 455.)
Disposition
The judgment is affirmed. ______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
PREMO, J.
____________________________________
ELIA, J.
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[1] All further statutory references are to the Penal Code unless otherwise specified.
[2]We grant defendants request that we take judicial notice of the record in People v. Abanico (July 6, 2007, H029034) [nonpub. opn.]. (Evid. Code, 452, subd. (d).)
[3]We summarized the facts concerning defendants offenses in the previous appeal and need not do so again her.
