P. v. Garcia

Filed 11/30/05 P. v. Garcia CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. ARTURO RODRIGUEZ GARCIA, Defendant and Appellant.

A108208 (Sonoma County Super. Ct. No. TCR-433300)

I. INTRODUCTION

Appellant was sentenced to the upper term in state prison after pleading guilty to a felony charge of driving while under the influence of alcohol, having suffered a prior conviction for the same offense within the prior ten years. (Veh. Code, §§ 23152, subd. (a) & 23550.5.) He appeals, claiming the sentence violates Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We disagree because, as our Supreme Court has recently held, that decision does not apply to California’s determinate sentencing system. (See People v. Black (2005) 35 Cal.4th 1238 (Black).)

II. FACTUAL AND PROCEDURAL BACKGROUND

On January 2, 2004, appellant was arrested by a California Highway Patrol officer when he was found in a restaurant after, according to an employee of the restaurant, he had driven his truck up onto a curb near the restaurant and then slumped over the steering wheel. When the employee reported what she had seen to the restaurant owner, the owner went out to the truck. He found its engine was still running, its lights still on, and appellant, smelling of alcohol, asleep over the steering wheel. The restaurant owner awoke appellant and invited him into the restaurant for coffee and then, himself, turned off the truck’s lights and ignition and removed the keys.

When the officer, called by the restaurant owner, arrived, the hood of the vehicle was still warm. Appellant admitted the truck was his but denied having driven it. The officer smelled alcohol on his breath and “noted other signs of intoxication.” Appellant admitted having “too many” beers at a nearby bar and, after his arrest, refused to submit to chemical tests, arguing to the officer: “No way, dude. You’re crazy. You’ve got nothing on me. Come on, dude, just let me go.”

By a complaint filed January 9, 2004, appellant was charged with a felony violation of driving under the influence, with a prior conviction for the same offense within the past 10 years. He initially pled not guilty, but changed that plea several months later.

On October 21, 2004, the court sentenced appellant to the upper term of three (3) years in state prison over appellant’s objections that such was not permitted under Blakely. The court awarded him 428 days for time already served, imposed a restitution fine of $600 and suspended another such fine.

Appellant filed a notice of appeal the same day.

III. DISCUSSION

Appellant contends his sentence must be reversed pursuant to Blakely because the trial court committed constitutional error by imposing an upper term sentence based on aggravating factors that were not supported by jury findings.

In Blakely, the United States Supreme Court held that a Washington State court denied a criminal defendant his constitutional right to a jury trial by increasing the defendant’s sentence for second-degree kidnapping from the “standard range” of 49 to 53 months to 90 months based on the trial court’s finding that the defendant acted with “‘deliberate cruelty.’” (Blakely, supra, 542 U.S. at p. 300.) The Blakely court found that the state court violated the rule previously announced in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) that, “‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” (Blakely, supra, 542 U.S. at p. 301.) In reaching this conclusion, the court clarified that, for Apprendi purposes, the “statutory maximum” is “not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” (Id. at pp. 303-304.)

The People urge affirmance of appellant’s sentence. They contend that California’s triad sentencing system does not offend Blakely at all (citing Black, supra) and, in any event, appellant “entered his guilty plea with the understanding that the court would impose the aggravated term, and he thereafter failed to obtain a certificate of probable cause when he filed his notice of appeal.”

We agree with the People’s firsthttp://fearnotlaw.com/ point, but not their second.

After this appeal was fully briefed, the California Supreme Court decided Black, supra, 35 Cal.4th 1238. The Black court held that “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.) In reaching this conclusion, the Black court expressly stated that, under California’s sentencing system, “the upper term is the ‘statutory maximum’ and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the principles set forth in Apprendi, Blakely, and [United States v.] Booker [(2005) __ U.S __ [125 S.Ct. 738]].” (Black, supra, 35 Cal.4th at p. 1254.)

Black is binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We therefore reject appellant’s contention that his upper term sentence is impermissible.

However, we also reject the People’s argument that this appeal is “not cognizable” (RB 3) because unaccompanied by a certificate of probable cause. Such a certificate is not required when the appeal deals with “proceedings held subsequent to the plea for the purpose of determining the . . . penalty to be imposed.” (People v. Buttram (2003) 30 Cal.4th 773, 780; see also Cal. Rules of Court, rule 30 (b)(4)(B).) Although the record is not crystal clear, such appears to have been the case here. There seems not to have been an explicit “plea bargain” here, but only an indicated or “open” sentence prior to appellant’s plea of guilty. This is, of course, different than a formal plea bargain. (See, e.g., People v. Vessell (1995) 36 Cal.App.4th 285, 296; People v. Delgado (1993) 16 Cal.App.4th 551, 554.)

IV. DISPOSITION

The judgment and sentence are affirmed.

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Haerle, J.

We concur:

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Kline, P.J.

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Ruvolo, J.

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