P. v. Jones

Filed 2/22/07 P. v. Jones CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
KENNETH DEWAYNE JONES,
Defendant and Appellant.
B190882
(Los Angeles County
Super. Ct. No. TA077113)
APPEAL from a judgment of the Superior Court of Los Angeles County,
Tammy Chung Ryu, Judge. Affirmed.
William L. Heyman, under appointment by the Court of Appeal, for
Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves,
Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney
General, Lawrence M. Daniels and Kathy S. Pomerantz, Deputy Attorneys
General, for Plaintiff and Respondent.
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2.
In December 2004, Kenneth Dewayne Jones entered an open no contest
plea to one count of making criminal threats (Pen. Code, § 422),
acknowledging as part of a plea agreement that the maximum “time in
custody in [his] case [was] three years” (upper term), but that based on his open
plea sentencing would be deferred for eight months, imposition of sentence
would be suspended, probation would be granted with credit for the eight
months served, and that if he violated any term of probation he “could be sent
to state prison for up to the full three years.” Jones waived his right to a jury trial,
and probation was later granted in conformance with the agreement. Jones
violated the terms of probation and it was revoked in April 2006, at which time
the trial court imposed the contemplated three-year state prison sentence.
Jones appeals, claiming the upper term sentence cannot stand because
the facts on which it is based were not found by a jury. Had he not waived his
right to a trial by jury, we would agree. (Cunningham v. California (2007) ___ U.S.
___ [127 S.Ct. 856].) But he did waive his right to a jury trial, and he did so
knowing he was facing a three-year state prison term. (People v. Berutko (1969)
71 Cal.2d 84, 94 [“‘It is settled that where a defendant waives a jury trial he is
deemed to have consented to a trial of all issues in the case before the court
sitting without a jury.’”].)1 It follows that (unless the California Supreme Court
holds otherwise in People v. French, review granted February 7, 2007, S148845, or
one of the related cases) there is no “Blakely” issue in this case.
1 At the time the plea was taken in 2004, Jones was represented by Deputy Public Defender
Robert Schmitz, the prosecutor was Deputy District Attorney Geoffrey Lewin, and the plea was
taken by Judge John T. Doyle. At the time of sentencing in 2006 (after the violation), Jones was
represented by Deputy Public Defender Hidea Nakano, the prosecutor was Deputy District
Attorney Beth Widmark, and sentence was imposed by Judge Tammy Chung Ryu. We mention
this because, at the sentencing hearing, trial counsel (apparently unaware of the jury waiver)
purported to preserve Jones’s “Blakely right to object to the imposition of high term” -- and
neither the prosecutor nor the trial court pointed out that the issue was moot.

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3.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
VOGEL, Acting P.J.
We concur:
ROTHSCHILD, J.
JACKSON, J.*
______________________________________________________________________________
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.

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