Opinion
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 2006001424, Bruce A. Clark, Judge.
California Appellate Project, Jonathan B. Steiner, Executive Director, Richard B. Lennon, Staff Attorney, 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Sonya Won, Deputy Attorney General, for Plaintiff and Respondent.
PERREN, J.
Jose Trinidad Esquival Ruiz appeals the judgment entered after he pled guilty to two counts of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)) and one count of possession for sale of methamphetamine (Health & Saf. Code, § 11378). He also admitted that he personally used a firearm in committing the assaults (§ 12022.5), and that he was armed with a firearm during commission of the possession offense (§ 12022, subd. (c)). The trial court sentenced him to a total of eight years in state prison, consisting of six years on the primary assault count (the low term of three years plus three years for the personal firearm use allegation), plus a consecutive eight months (one-third the midterm) for the possession count and a consecutive 16 months for the associated firearm enhancement. His sole contention on appeal is that the imposition of consecutive sentences violated his jury trial and due process rights. (Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856]; Blakely v. Washington (2004) 542 U.S. 296.) We affirm.
All further undesignated statutory references are to the Penal Code.
FACTS
Because Ruiz pled guilty, the facts are derived from the preliminary hearing transcript and the probation report. On January 12, 2006, Ramon Fernando Castillo Mena and his passenger Juan Rodriguez were driving on the 101 freeway near Santa Barbara when Ruiz sped by in a mini truck and swerved in front of them. After Mena veered into another lane to avoid a collision, he pulled up next to Ruiz's truck and "flipped him off." Ruiz retrieved a gun from under his seat, rolled down his window, and shot at Mena, hitting his front bumper. Mena called 911 and gave the operator a description of Ruiz's truck, which was red and had black flames on the side. An officer quickly responded and followed Ruiz as he drove through Carpinteria and Summerland. Ruiz eventually pulled over and was detained, and Mena identified him in an in-field identification. A loaded gun, small baggies of amphetamine, and other evidence of narcotic sales were found in Ruiz's truck during a subsequent search.
DISCUSSION
Ruiz contends the trial court violated his jury trial and due process rights by imposing consecutive sentences on the assault and possession counts and related firearm enhancements based on facts that were not admitted or found true by a jury. The People respond that the appeal must be dismissed because Ruiz pled guilty and failed to obtain a certificate of probable cause challenging his sentence on constitutional grounds. The People further contend that Ruiz forfeited his claim by failing to raise it below, and that in any event the claim lacks merit.
We reject the People's assertion that Ruiz's claim is not cognizable on appeal in the absence of a certificate of probable cause. That assertion is based on People v. Shelton (2006) 37 Cal.4th 759, in which our Supreme Court held that "a challenge to the trial court's authority to impose [a] lid sentence is a challenge to the validity of the plea requiring a certificate of probable cause." (Id., at p. 763, italics added.) Aside from the fact that Ruiz's plea agreement did not contain a sentence lid, i.e., a maximum sentence less than that which could otherwise be lawfully imposed, the court recently recognized that a defendant who pleads guilty or no contest need not obtain a certificate of probable cause in order to raise a Cunningham claim on appeal "because that claim implicates his sentence only and does not constitute a challenge to the plea agreement . . . ." (People v. French (Mar. 27, 2008, S148845) ___ Cal.4th ___ [2008 WL 795196, *1].) We also reject the People's contention that Ruiz forfeited his right to raise the claim on appeal by failing to object on that ground at sentencing because any such objection would have been futile. (See People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.)
On the merits, however, Ruiz's claim fails. After Ruiz filed his opening brief, our Supreme Court rejected the claim that imposition of consecutive terms violates Blakely and Cunningham. (People v. Black (2007) 41 Cal.4th 799, 820-823.) Although the trial court can consider aggravating factors in deciding to impose consecutive terms, it need not identify any such factors to justify its decision. "The determination whether two or more sentences should be served in this manner is a 'sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense' and does not 'implicate[] the defendant's right to a jury trial on facts that are the functional equivalent of elements of an offense.' [Citation.]" (Id., at p. 823.) We are bound by the Supreme Court's decision. (Auto Equity Sales, Inc. v. Superior Court(1962) 57 Cal.2d 450, 455.)
The judgment is affirmed.
We concur: YEGAN, Acting P.J., COFFEE, J.