P. v. Reams

Filed 12/1/05 P. v. Reams CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL A. REAMS, Defendant and Appellant.

F047183 (Super. Ct. No. F02671272-3) O P I N I O N

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Jane York, Judge.

Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, J. Robert Jibson, Deputy Attorney General, for Plaintiff and Respondent.

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Appellant entered a plea of guilty to spousal abuse (count 1), aggravated assault (count 2), and making terrorist threats (count 3). Appellant also admitted to having personally inflicted great bodily injury in connection with counts 1 and 2 and to a prior felony conviction within the meaning of Penal Code^[1] section 667, subdivision (b)-(i) and 1170.12, subdivision (a)-(d) (a strike) and within the meaning of section 667, subdivision (a)(1) (a prior serious felony enhancement). After striking the “strike” enhancement (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), the court sentenced appellant on count 1 to the lower term of two years, plus a five-year enhancement under section 12022.7, subdivision (e).^[2] The same sentence was imposed on count 2, but this sentence was stayed (§ 654). The court also imposed a consecutive one-third midterm of eight months on count 3, plus a five-year enhancement pursuant to section 667, subdivision (a), for a total aggregate unstayed term of twelve years, eight months.

The facts of the underlying offense are not relevant to the issues raised on appeal.

Discussion

This appeal challenges appellant’s upper term sentence enhancements for counts 1 and 2 and the imposition of a consecutive sentence for count 3. Relying on United States v. Booker (2005) 543 U.S. 220, Blakely v. Washington (2004) 542 U.S. 296, and Apprendi v. New Jersey ( 2000) 530 U.S. 466, appellant contends the trial court violated his Sixth Amendment right to trial by jury and his Fifth and Fourteenth Amendment rights to due process of law by imposing upper terms based on factors not admitted by appellant or found to be true by the jury beyond a reasonable doubt.

The California Supreme Court recently undertook an extensive analysis of these cases and concluded that the imposition of an upper term sentence under California’s determinate sentencing law is constitutional. (People v. Black (2005) 35 Cal.4th 1238.) Black also held that the decision to impose a consecutive term is constitutional. (Ibid.) The court specifically found “that the judicial fact finding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law” does not implicate constitutional rights. (Black, supra, 35 Cal.4th at p. 1244.) Decisions of the Supreme Court are binding and must be followed by all subordinate state courts of California. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456.)

disposition

The judgment is affirmed.

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^* Before Ardaiz, P.J., Dibiaso, J., and Harris, J.

^[1] All further references are to the Penal Code unless otherwise noted.

^[2] This section provides that any person who personally inflicts great bodily injury in a domestic violence case shall be punished by an additional and consecutive term of three, four or five years.