P. v. Harmon

Filed 7/18/06 P. v. Harmon CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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Defendant George Barnett Harmon pled no contest to possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), and admitted a prior serious felony conviction within the meaning of the three strikes law (Pen. Code, §§ 667, subd. (b)-(i), 1170.12, subds. (a)-(d)). The trial court sentenced him to the upper term of six years, reflecting the prior strike.

On appeal, defendant contends the imposition of the upper term violates the principles of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). He also asks for the abstract to be amended to reflect that he was sentenced with a strike. We reject defendant's Blakely claim, and order the trial court to amend the abstract to show defendant was sentenced under the three strikes law.

FACTUAL AND PROCEDURAL BACKGROUND

On July 18, 2005, officers from the Paradise Police Department responded to a report of a residential burglary at the home of Robert Bentley. Defendant showed up at the Bentley's home a few weeks before the burglary, claiming to be Michael Harmon, a half-brother of Bentley's wife. Neither Bentley nor his wife had seen defendant in years, and suspected him of being her other brother, George Harmon.

Bentley's wife confronted defendant about his identity a few days before the burglary. Defendant left the Bentley's home with a .32-caliber semiautomatic handgun taken from their recreational vehicle. Sometime later, defendant called Bentley to tell him his home had been burglarized.

Defendant returned most of the stolen property to Bentley's son. He denied committing any burglary, but admitted possessing the gun. Defendant acknowledged he was not allowed to possess firearms because he was a convicted felon.

DISCUSSION

I

Relying on Blakely, supra, 542 U.S. 296 [159 L.Ed.2d 403], defendant contends the imposition of an upper term in this case violated his constitutional rights to a jury trial and proof beyond a reasonable doubt. He recognizes that the contention was rejected in People v. Black (2005) 35 Cal.4th 1238, 1244, 1254, which is binding upon this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) He nevertheless raises the issue in order to preserve it for federal court review. For the reasons stated in Black, we conclude the contention has no merit.

There is another reason to affirm the upper term sentence. The United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] the fact of a prior conviction may always be used to enhance a prison sentence. (Id. at p. 490 [147 L.Ed.2d at p. 455].) This ruling is still valid after Blakely. (See United States v. Booker (2005) 543 U.S. 220, 231 [160 L.Ed.2d 621, 641-642].)

One of the reasons the trial court gave for imposing the upper term is defendant's prior criminal record. (Cal. Rules of Court, rule 4.421(b)(2).) Since one valid factor in aggravation is sufficient to expose defendant to the upper term (People v. Cruz (1995) 38 Cal.App.4th 427, 433), defendant's sentence did not violate the rule of Apprendi and Blakely.

II

Defendant next asserts, and the People concede, the abstract of judgment omits any reference to defendant being sentenced under the three strikes law. We shall direct the trial court to amend the abstract to reflect that defendant was sentenced under the two strikes provision of the three strikes law. (In re Candelario (1970) 3 Cal.3d 702, 705.)

DISPOSITION

The trial court is directed to prepare an amended abstract of judgment correctly reflecting that defendant was sentenced under the second strike provision of the three strikes law.

A certified copy of the abstract is to be forwarded to the Department of Corrections and Rehabilitation. As amended, the judgment is affirmed.

CANTIL-SAKAUYE , J.

We concur:

HULL , Acting P.J.

BUTZ , J.

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