P. v. Johnson
Filed 8/22/06 P. v. Johnson CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
SECOND APPELLATE DISTRICT
DIVISION TWO
| THE PEOPLE, Plaintiff and Respondent, v. ROLAND JOHNSON, Defendant and Appellant. | B187182 (Los Angeles County Super. Ct. No. NA039450) |
APPEAL from an order of the Superior Court of Los Angeles County. Tomson T. Ong and Richard W. Lyman, Judges. Affirmed.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez, Chung L. Mar and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
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Roland Johnson appeals from the order revoking probation previously granted upon his certified plea of no contest to inflicting corporal injury upon a spouse or cohabitant (Pen. Code, § 273.5, subd. (a)). On revocation of probation, the suspended upper term sentence of four years in prison was ordered into effect. Appellant contends that the trial court violated his constitutional rights when it imposed the upper term. We affirm.
Appellant was charged by complaint with assault by means of force likely to produce great bodily injury and with inflicting corporal injury on a spouse or cohabitant, in each of which he personally inflicted great bodily injury.[1] He entered a certified plea of no contest to inflicting corporal injury on a spouse or cohabitant, and in February 1999 the trial court suspended imposition of sentence and placed him on probation for five years. In June 1999 probation was revoked. It was reinstated in July 1999.
In June 2000, after appellant admitted a violation of probation, the trial court revoked probation and then reinstated it after imposing and suspending a prison term of four years, the upper term.
In June 2001, probation was revoked. It was reinstated in October 2001. In July 2003, probation was again revoked and a bench warrant issued. In October 2005, the trial court found that appellant had absconded from probation. Over appellant's objection that the sentence violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the trial court ordered into effect the previously imposed four-year term.
Appellant contends that, under Blakely, the jury, not the trial court, must determine whether there are aggravating factors to justify imposition of the upper term.[2] He argues, therefore, that Penal Code section 1170, subdivision (b) and the California determinate sentencing law are unconstitutional, violating his Sixth Amendment right to a jury trial and his Fourteenth Amendment right to due process. This claim must fail.
As appellant acknowledges, his contention was rejected by the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238. In Black, the Supreme Court concluded that â€
