P. v. Sample 9/13/04 CA3

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State: California

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

Docket No: C044445

Case Date: 09/13/2004

Preview:Filed 9/13/04

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, Plaintiff and Respondent, v. GEORGE CARL SAMPLE, Defendant and Appellant. C044445 (Super. Ct. No. 01F07726)

APPEAL from judgments of the Superior Court of Sacramento County, Talmadge R. Jones and Greta Curtis Fall, Judges. Affirmed with directions. William I. Parks, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, Brian R. Means, David Andrew Eldridge and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.

*

Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts I through V. 1

Defendant George Carl Sample was convicted by jury of corporal injury on a former spouse, with personal infliction of great bodily injury (count one); assault with a deadly weapon (count two); possession of a firearm by a convicted felon (count three); and battery upon a cohabitant (count five). The trial court found

that he violated his probation on an earlier conviction for spousal abuse. Defendant was sentenced to an aggregate term of 11 years,

eight months in state prison, including the upper term on count one and consecutive terms on count three and on the prior conviction. On appeal, defendant raises a variety of contentions. Among

them is his claim that imposition of the upper term and consecutive terms violated the Sixth Amendment of the United States Constitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi) and Blakely v. Washington (2004) 542 U.S. ___ [159 L.Ed.2d 403] (hereafter Blakely). Defendant

concedes he did not raise this claim of error in the trial court. As we will explain in the published part of this opinion, United States v. Cotton (2002) 535 U.S. 625 [152 L.Ed.2d 860] held that a defendant's failure to object to Apprendi error in the trial court forfeits the right to raise it on appeal if the error did not seriously affect the fairness, integrity, and public reputation of the judicial proceedings, i.e., if a factor relied upon by the trial court in violation of Apprendi was uncontroverted at trial and was supported by overwhelming evidence. Such is the case here.

Defendant did not raise an Apprendi objection in the trial court, and factors used in imposing the upper term and consecutive sentencing were uncontested at trial and supported by overwhelming 2

evidence.

Hence, defendant is barred from raising the claim of

Apprendi/Blakely error. In any event, the rule of Apprendi and Blakely does not apply to California's consecutive sentencing scheme, and imposition of the upper term here was harmless beyond a reasonable doubt. In the unpublished parts of the opinion, we reject defendant's other claims of error. Accordingly, we shall affirm the judgment,

but direct the trial court to correct clerical mistakes in the abstract of judgment. FACTUAL AND PROCEDURAL BACKGROUND The charges against defendant Count one, committed on September 17, 2001, alleged infliction of corporal injury upon defendant's former spouse, Tamara Sample, resulting in a traumatic condition and with personal infliction of great bodily injury under circumstances involving domestic violence. (Pen. Code,

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