Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF118481A, Kenneth C. Twisselman II, Judge.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Paul A. Bernardino, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Dawson, Acting P.J., Hill, J., and Kane, J.
INTRODUCTION
Appellant, Esteban Demecio Hernandez, was charged in an information filed on May 9, 2007, with second degree murder (Pen. Code, § 187, subd. (a), count one), gross vehicular manslaughter while intoxicated with a prior conviction for driving under the influence of alcohol (§ 191.5, subd. (d), count two), two counts of causing injuries to others while driving under the influence of alcohol (Veh. Code, § 23153, subds. (a) & (b), counts three & four), and driving with a suspended license (Veh. Code, § 14601.2, subd. (a), count five). Enhancements were alleged that appellant had three qualifying prior convictions for driving under the influence: one in 2003 (Veh. Code, § 23540) and two in 2004 (Veh. Code, § 23550, subd. (a)).
Unless otherwise noted, all statutory references are to the Penal Code.
On February 19, 2008, for the purposes of count one only, appellant waived his right to a trial and admitted the allegations that he had three prior drunk driving convictions. On February 26, 2008, the jury convicted appellant on all five counts. On April 9, 2008, the trial court sentenced appellant to prison for four years on count three plus an indeterminate term of 15 years to life on count one. Sentences on the remaining counts were stayed pursuant to section 654. Appellant contends the trial court violated his Sixth Amendment right to a jury trial in sentencing him consecutively on counts one and three.
FACTS
Vehicle Crash
At 8:45 p.m. on March 17, 2007, Reynalda Bazaldua was driving her two daughters in a Honda Prelude on Comanche Drive. Bazaldua’s oldest daughter, who was 13, estimated her mother’s speed at 45 miles per hour as they approached a stop sign. Bazaldua’s daughter was playing with a cell phone when she saw two headlights coming their way. Bazaldua’s daughter blacked out and when she regained consciousness, her mother’s car seat was all the way to the back seat of the car.
When California Highway Patrol Officers Julie Leanne Heitzman and Francisco Torres arrived, they found that the front end of the Honda was crushed and the driver’s side door was pinched shut. The roof of the Honda had to be cut open to extract Bazaldua. Bazaldua had major injuries, including blunt force trauma to the face, from which she died. One of Bazaldua’s daughters had bruising across her face, chest and legs and complained of stomach pain. The other daughter had a huge hematoma on the left side of her face, her eye was red, and she had bruising and cuts to her ankle, legs, and knees.
Investigators found appellant still inside his vehicle. Appellant could not exit the vehicle because the doors were pinned shut. Torres described appellant’s eyes as bloodshot. The odor of an alcoholic beverage emanating from his breath and person was “extremely strong.” Appellant’s speech was so slurred that Torres had difficulty understanding him. A blood test showed appellant’s blood-alcohol level at .20 percent. Another blood-alcohol test placed appellant’s blood-alcohol level at .24 percent. For a male appellant’s size to have a blood-alcohol level of .24 percent, he would have to consume between 9 and 13 beers each at 12 ounces or 7 to 11 shots of 100 proof tequila each at 11/2 ounces.
Sentencing Hearing
The probation officer prepared a report for the sentencing hearing noting no circumstances in mitigation and four factors in aggravation: the appellant’s prior convictions as an adult are numerous, the appellant was on misdemeanor probation for driving under the influence when he committed the instant offenses, appellant’s prior performance on misdemeanor probation was unsatisfactory, and appellant’s blood-alcohol level was triple the legal limit. The probation officer recommended that appellant be given a consecutive sentence on counts one and three.
At the sentencing hearing, the trial court noted there were multiple victims and that appellant’s culpability increased by the number of those harmed. The trial court found appellant was on misdemeanor probation when he committed these offenses and that his performance on probation was unsatisfactory. The court found that appellant’s high blood-alcohol level was only an aggravating factor as to counts three and four. The court found that the gravity of appellant’s offenses was increased because there were multiple victims and applied this factor to counts three and four. The court sentenced appellant to a prison term of 15 years to life on count one and to a consecutive term of four years on count three.
DISCUSSION
Appellant contends that his Sixth Amendment right to a jury trial was violated when the trial court sentenced him to consecutive sentences on counts one and three. Appellant challenges the holding of the California Supreme Court in People v. Black (2007) 41 Cal.4th 799, 820-823 (Black II) that consecutive sentencing is not subject to the Sixth Amendment. The constitutional arguments appellant makes on appeal were recently rejected by the United States Supreme in Oregon v. Ice (2009) 555 U.S. ___ [129 S.Ct. 711, 172 L.Ed.2d 517]. No jury finding is required for a trial court to impose a consecutive sentence. (Ibid; People v. Quintanilla (2009) 170 Cal.App.4th 406, 414.) We therefore reject appellant’s contention.
DISPOSITION
The judgment is affirmed.