P. v. Ramirez

Filed 12/18/06 P. v. Ramirez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
ISAAC LOU RAMIREZ,
Defendant and Appellant.
2d Crim. No. B188379
(Super. Ct. No. 1191457)
(Santa Barbara County)
Isaac Lou Ramirez appeals from his conviction after jury trial of petty theft
with a prior (count 1) (Pen. Code, §§ 484, subd. (a), 666)
1
and misdemeanor vandalism
(count 2) (§ 594, subd. (b)(2)(A)). The court found that appellant had served two prior
prison terms. (§ 667.5, subd. (b).) The court sentenced appellant to serve a total of five
years in state prison: a three-year upper term for petty theft with a prior, one year for
each of the two prior prison terms, to be served consecutively, and a six-month
concurrent sentence for the vandalism offense. Appellant argues that his sentence should
be set aside because (1) Blakely v. Washington (2004) 542 U.S. 296 (Blakely) invalidates
the trial court's imposition of an upper term based on facts concerning the current offense
that were not determined to be true by a jury; and (2) he had a constitutional right to have
a jury examine the record of his prior conviction. We reject both arguments and affirm.
1
All statutory references are to this code unless otherwise stated.

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2
As appellant acknowledges, our state Supreme Court has rejected the
arguments he now raises. In People v. Black (2005) 35 Cal.4th 1238, 1246, 1257-1261,
the court held that Blakely does not invalidate California's upper term sentencing
procedure. The constitutionality of California's sentencing scheme is before the United
States Supreme Court in Cunningham v. California (cert. granted Feb. 21, 2006, No.
05-6551) __ U.S. __ [126 S.Ct. 1329], and a certiorari petition is pending in Black. We
remain bound by the holding in Black unless and until the United States Supreme Court
declares it to be an incorrect statement of federal law. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.) We find no error in the imposition of the
upper term. (Black, at pp. 1246, 1257-1261.)
Appellant also argues that he had a constitutional right to have a jury rather
than the judge examine the record of his prior convictions. We disagree. In People v.
McGee (2006) 38 Cal.4th 682, 709, our state Supreme Court held that a defendant does
not have a federal constitutional right to have a jury, rather than the sentencing judge,
examine the record of conviction to determine the nature of, and not just the fact of, prior
out-of-state convictions. Although each of appellant's convictions involve California
cases, it would be unreasonable to conclude that the analysis in McGee applies only to
out-of-state prior convictions. (See ibid.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
COFFEE, J.
We concur:
YEGAN, Acting P.J.
PERREN, J.

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3
James F. Rigali, Judge
Superior Court County of Santa Barbara
______________________________
Dushkes Law Corporation, Larry S. Dushkes for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster,
Supervising Deputy Attorney General, Chung L. Mar, Deputy Attorney General, for
Plaintiff and Respondent.

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