Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. HC5906
Duffy, J.
Defendant Frank L. Davis pleaded no contest in June 1998 to assault with a firearm (Pen. Code, § 245, subd. (a)(1)). He also admitted the allegations that he inflicted great bodily injury (§ 12022.7, subd. (a)); personally used a firearm (§ 12022.5, subd. (a)); had a prior strike (§ 1170.12, subd. (c)(1)); and had a prior serious felony conviction (former § 667, subd. (a), see stats. 1989, ch. 1043, § 1). Defendant was sentenced to an aggregate prison term of 20 years.
All further statutory references are to the Penal Code unless otherwise stated.
In September 2007, defendant filed a petition for writ of coram nobis with the court below. In that petition, he contended that he was entitled to a reduction of his sentence because the court had imposed an upper term sentence in violation of Cunningham v. California (2007) 549 U.S. 270 (Cunningham). The court denied the petition and defendant filed a timely appeal.
We appointed counsel to represent defendant in this court. Appointed counsel filed an opening brief which stated the case and the facts but raised no specific issues. We notified defendant of his right to submit written argument in his own behalf. Defendant filed a supplemental brief in which he essentially argued that the imposition of an upper term sentence was in violation of his Sixth Amendment right to a jury trial and his Fourteenth Amendment right to due process. He claimed that under Cunningham, supra, 549 U.S. 270, he was entitled to have a jury determine beyond a reasonable doubt any aggravating facts that were used to impose the upper term sentence.
We have reviewed the entire record pursuant to People v. Wende (1979) 25 Cal.3d 436. We will affirm the order denying the petition for writ of coram nobis.
FACTUAL AND PROCEDURAL HISTORY
The petition filed below was based upon a judgment entered in an underlying criminal case (People v. Davis (Super. Ct. Monterey County, 1998, No. SM980147A)). On June 19, 1998, defendant pleaded no contest to assault upon another person with a firearm (§ 245, subd. (a)(1)). He also admitted the allegations that he inflicted great bodily injury (§ 12022.7, subd. (a)); personally used a firearm (§ 12022.5, subd. (a)); had suffered a prior strike conviction (§ 1170.12, subd. (c)(1)); and had been previously convicted of a serious felony (former § 667, subd. (a)). On August 5, 1998, the court sentenced defendant to the upper term of four years on the assault with a firearm conviction and doubled the term pursuant to section 1170.12, subdivision (c)(1). It also imposed a consecutive three-year term on the infliction of great bodily injury enhancement (§ 12022.7, subd. (a)); a consecutive four-year term on the personal firearm use enhancement (§ 12022.5, subd. (a)); and a consecutive five-year term under former section 667, subdivision (a). The total prison term was 20 years.
On September 10, 2007, defendant filed a petition for writ of coram nobis (petition). He argued—relying on Cunningham, supra, 549 U.S. 270—that the upper term sentence imposed on his assault with a firearm conviction violated his Sixth Amendment right to a jury trial. On November 5, 2007, the court denied the petition, holding that the Supreme Court’s decision in Cunningham was not to be given retroactive application. Defendant filed a timely notice of appeal. The appeal is proper under section 1237 as an appeal from a postjudgment order affecting defendant’s substantial rights. (People v. Gallardo (2000) 77 Cal.App.4th 971, 982, citing People v. Allenthorp (1966) 64 Cal.2d 679, 683.)
DISCUSSION
In his supplemental brief, defendant contends that there was sentencing error in that an upper term sentence was imposed based upon matters not found by a jury beyond a reasonable doubt as required under Cunningham, supra, 549 U.S. 270. The trial court properly denied the petition on the basis that Cunningham should not be given retroactive application to cases such as the one here where the conviction was final at the time of the decision.
The Supreme Court’s decision in Cunningham was based upon its earlier decision in Blakely v. Washington (2004) 542 U.S. 296 (Blakely). In Blakely, the court reaffirmed the principle—relied on by defendant here in challenging his upper term sentence—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.’ ” (Id. at pp. 301, quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490.)
This principle of Blakely is not retroactively applied to a case in which a final judgment had been previously imposed. (In re Consiglio (2005) 128 Cal.App.4th 511, 516; People v. Amons (2005) 125 Cal.App.4th 855, 864-870 (Amons).) As the court held in Amons, under circumstances similar to those here where the defendant’s upper term sentence occurred years before the Supreme Court’s decision in Blakely, “[The d]efendant’s belated complaint with his imposed but suspended four-year upper term sentence is not cognizable in this appeal. [Citations.] And the principles of Blakely cannot retroactively invalidate the sentence imposed upon [the] defendant by a final judgment.” (Amons, supra, at pp. 869-870.) We thus conclude that defendant could not challenge the validity of his 1998 upper term sentence because the principles of Blakely and Cunningham are not retroactive to final cases.
We note—as did defense counsel and defendant in their briefs—that the trial court relied on a case that is no longer citable for the proposition that Cunningham is not retroactive. (See In re Gomez (2007) 153 Cal.App.4th 1516, review granted Oct. 24, 2007, S155425.) Gomez involved an upper term sentence that was imposed after Blakely was decided but before the court’s decision in Cunningham. The petitioner there initially challenged the sentence by an appeal, which was unsuccessful based upon the then-prevailing authority of People v. Black (2005) 35 Cal.4th 1238. After his appeal was final, the petitioner again challenged the sentence by habeas petition, relying on the subsequent decision of Cunningham. The appellate court denied the habeas petition, rejecting the petitioner’s contention that Cunningham should apply retroactively to his post-Blakely sentence. Thus, the circumstances of Gomez are very different from those presented here and it suffices to say that, based upon the nonretroactivity of the principles of Blakely (In re Consiglio, supra, 128 Cal.App.4th at p. 516; Amons, supra, 125 Cal.App.4th at pp. 864-870), defendant’s challenge to his upper term sentence is not cognizable.
Having disposed of defendant’s Cunningham challenge, we conclude, based upon our review of the entire record and the arguments presented in defendant’s supplemental brief, that there are no arguable issues on appeal.
DISPOSITION
The order denying the petition for writ of coram nobis is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., McAdams, J.