Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA059210. Harvey Giss, Judge.
Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Susan D. Martynec, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
Rudy Guadalupe Ramirez appeals from a judgment entered upon his convictions by jury of attempted carjacking (Pen. Code, §§ 664/215, subd. (a), count 1) attempted robbery (§§ 664/211, count 2) and possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 3). The trial court sentenced him to the low term of 18 months on count 1 and to one-third the midterm, or eight months, on count 3, to be served consecutively. It also imposed the midterm of two years on count 2 and stayed execution pursuant to section 654. Appellant contends that imposition of consecutive sentences on counts 1 and 3 violated his right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution, as set forth in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
All further statutory references are to the Penal Code unless otherwise indicated.
We affirm.
FACTS
On May 21, 2007, at approximately 6:30 a.m., Simon Zazueta (Zazueta) was driving to work with his daughter in the car. He parked his car on a side street, near Van Nuys Boulevard, so he could purchase some tamales at a tamale stand. He left his keys in the ignition and his daughter in the car. As Zazueta walked back to his car, appellant approached him at the corner and asked for Zazueta’s car keys and money. Zazueta told appellant he did not have any keys or money, and began walking back toward the tamale stand to distance himself from his car where his daughter was waiting. Appellant pushed Zazueta on the shoulder and loudly said, “‘You fag,’” and “‘You son of a bitch and son of a whore.’” Zazueta was afraid.
Zazueta then saw a police car and signaled to it. He was “visibly distressed” and appellant was staring at him “menacingly.” The police car made a U-turn to investigate. Appellant walked away. Zazueta pointed in appellant’s direction and the police stopped and arrested him. In appellant’s pocket, they found a usable quantity of methamphetamine.
DISCUSSION
As set forth above, appellant was sentenced consecutively on counts 1 and 3. The trial court gave as its reason for its sentencing choices that “. . . the court feels that this could have escalated into something very serious; and it was only the fortuitous circumstance that the police happened to for once in a situation be right adjacent to the scene where it was occurring; and that probably prevented a fight between the male victim, who was an older man, and the defendant because I don’t think the male victim could have given up his keys knowing that his daughter was sitting in the car if it was about to be carjacked; and had the police not come by I think this could have escalated into something very serious. It wasn’t the defendant’s conduct. It was the fact that the police were nearby that the defendant withdrew after the initial attempt.”
Appellant’s sole contention is that the imposition of consecutive sentences violated his Sixth Amendment and due process rights to have the jury determine beyond a reasonable doubt all facts necessary to increase his sentence beyond the statutory maximum. He argues that section 669 provides a presumption that multiple sentences be imposed concurrently, rather than consecutively. Hence, the maximum sentence is concurrent sentences, and the facts used to increase the maximum to impose consecutive sentences must be decided by a jury beyond a reasonable doubt. Instead, the trial court here made that factual finding by a preponderance of the evidence. This contention is without merit.
The California Supreme Court has twice held that the principles discussed in Apprendi, Blakely and Cunningham (Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856] (Cunningham)) do not apply to consecutive sentencing imposed pursuant to section 669. (People v. Black (2005) 35 Cal.4th 1238, 1262-1263 (Black I) [which, although not binding in light of the United States Supreme Court’s order vacating the judgment, remains persuasive on points not addressed in Cunningham]; People v. Black (2007) 41 Cal.4th 799, 821-823 (Black II).) We are of course bound by these decisions. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J., CHAVEZ, J.