In re Gomez on H.C. 8/7/07 CA2/2

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B197980

Case Date: 10/24/2007

Preview:Filed 8/7/07

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

In re SOTERO GOMEZ,

B197980 (Los Angeles County Super. Ct. No. KA064573)

on Habeas Corpus.

ORIGINAL PROCEEDING. Bruce F. Marrs, Judge. Petition for writ of habeas corpus denied.

Vincent James Oliver for Petitioner Sotero Gomez.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Carl N. Henry, Deputy Attorneys General, for Respondent the People.

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In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." In Blakely v. Washington (2004) 542 U.S 296, 303 (Blakely), the high court stated that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." In Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 868] (Cunningham), the high court stated, "In accord with Blakely, . . . the middle term prescribed in California's statutes, not the upper term, is the relevant statutory maximum." The court invalidated the California determinate sentencing law (DSL) to the extent it authorized the trial court to impose an upper term sentence based on facts that were found by the court, rather than by a jury beyond a reasonable doubt. (Cunningham, supra, at p. 871.)1 Petitioner Sotero Gomez has filed a petition for writ of habeas corpus in this court, after the denial of his petition for writ of habeas corpus in the superior court. He claims that Cunningham should be applied retroactively to his upper term sentence, which was imposed after Blakely was decided but before the decision in Cunningham. We issued an order to show cause. We conclude that Cunningham is not to be applied retroactively to cases already final when it was decided. BACKGROUND Gomez was convicted by jury of rape by force or fear (Pen. Code,

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