Opinion
C053222
4-25-2008
THE PEOPLE, Plaintiff and Respondent, v. RALPH CORONA, Defendant and Appellant.
NOT TO BE PUBLISHED
A jury convicted defendant Ralph Corona of attempted forcible rape (Pen. Code, §§ 261, subd. (a)(2), 664)) and assault with a deadly weapon (§ 245, subd. (a)(1)), and found that defendant had personally used a deadly weapon in the commission of the offenses within the meaning of sections 12022.3, subdivision (a) and 12022, subdivision (b)(1), respectively. In the sanity phase of the proceedings, the jury found defendant legally sane when he committed the crimes.
Hereafter, undesignated section references are to the Penal Code.
The trial court sustained allegations that defendant had two prior "strike" convictions (§§ 667, subd. (d), 1170.12, subd. (b)), another prior serious felony conviction (§ 667, subd. (a)), and had served a prior prison term (§ 667.5, subd. (a)). After denying defendants motion to strike at least one of his prior strike convictions, the trial court sentenced him to 60 years to life.
Defendant appeals, contending (1) there is insufficient evidence to support his conviction for assault with a deadly weapon; (2) trial counsel was ineffective in failing to request a pinpoint instruction on foreseeability; (3) the trial court had a duty to instruct sua sponte on self-defense; (4) the court should have instructed on lesser included offenses for both counts; (5) the courts denial of defendants motion to strike his two prior strike convictions was an abuse of discretion; (6) his "Three Strikes" sentence is cruel and unusual punishment under the federal and state constitutions; and (7) the courts decision to impose consecutive sentences violates the rule of Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham v. California (2007) 549 U.S. ___ (Cunningham) and defendants state due process and jury trial rights.
We reject the contentions and shall affirm.
BACKGROUND
Twenty-three-year-old Irene Doe lived with her parents in their Stockton house. On August 6, 2005, the three went out to dinner. Before leaving for the restaurant, Irene opened the window by her bed. They got home late, and Irene went to bed sometime between 11:30 p.m. and midnight.
As she was starting to fall asleep, Irene heard noises at the foot of her bed. She opened her eyes, looked around, and saw a shadow coming out of her closet. Thinking she was dreaming, Irene closed her eyes but was awakened by defendant placing his hand over her mouth.
Defendant whispered in Irenes ear "`Shh, shh, Im not going to hurt you. The cops are after me, shh." Irene whimpered, and defendant put a knife to her throat, saying "`Look, I got a knife." She felt something "cold and metal" on her throat as defendant made his threat.
Defendant continued by telling Irene, "`Im not going to hurt you," and "`I just want to have sex with you." Irene saw defendants face and recognized him as someone she saw occasionally around her neighborhood. As he leaned over her, defendant moved his hand from Irenes mouth to her shorts, brushing her breast along the way.
Irene then grabbed defendants hands with her own and screamed for her father. She and defendant struggled a little before defendant jumped toward the open window, which was right over the bed. Not wanting defendant to escape, Irene grabbed defendants ankle as he jumped to the window. Defendant responded by turning around and striking Irene on the left cheek next to her eye. He then tried to escape through the window.
Irenes father, Ignacio, was awakened by his daughters screams and went to her room. He saw his daughter grabbing defendant by the ankle as defendant was hanging over the ledge of the window, half in and half out of the room. Ignacio asked defendant what he was trying to do and Irene responded, "`He tried to rape me." At that point, Ignacio directed his wife to call the police.
According to Irenes testimony, Ignacio went to the window, leaned over, and started punching defendant. Defendant said, "`I didnt do anything Nacho. I didnt do anything." Ignacio leaned back into the room and told Irene to let go of defendant. Defendant stood up outside the window and said, "`I didnt do anything, Nacho. The cops are after me." Ignacio told defendant he had no right to be in the house and defendant left.
"Nacho" is Ignacios nickname.
According to Ignacio, after entering his daughters bedroom, he went to the window and leaned out. Because the bedroom window was high, Ignacio could lean only his upper body out the window. Defendants shoulders were on the ground outside the house; his feet were still in the bedroom, being held by Irene.
Ignacio tried to grab defendant to punch him but he could not reach defendant. Ignacio then saw defendant reach behind his head toward his collar area. Defendant then grabbed for something and Ignacio saw a "glare" from what looked like a knife.
Ignacio grabbed at defendants hand so defendant would not try to stab him, but was cut on his index finger while making the grab. Ignacio was trying to grab defendants wrist, but "because when I felt the knife, you know, I — I suspected he was going to try to stab me again so thats when I jumped back."
Ignacio was asked on cross-examination, "Did you actually see [defendant] try to stab you? I mean, take his arm and come towards you with this object?" He answered, "No, he didnt have the opportunity to, you know? I didnt want him to get the opportunity to — so he could strike again." Ignacio saw the shiny object and felt his hand connect with a sharp object as he moved his hand toward defendants wrist. He testified, "I didnt see him moving toward me because at that time, at that moment when I felt the blade, . . . my instinct was to just jump back."
Ignacio never saw defendant move toward him with the object because "I didnt want him to get the opportunity to do it again." However, Ignacio did see defendants hand come from behind his head and toward the front of his body, which led him to try to grab defendants wrist.
After he was cut, Ignacio leaned away from the window and told his daughter to let go of defendant and "let the police officers take care of it." She let go and defendant left.
Defendant lived next door to Irene and her family. After defendant left, Irene noticed that a pile of folded clothes had been moved in her closet, and there was a dress on the floor with a small amount of dirt on it.
Defendant presented an insanity defense. The court appointed two psychiatrists, both of whom examined defendant and concluded he was legally sane at the time of the crimes.
One expert concluded defendant suffered from a major mental illness, likely "[p]sychotic disorder not otherwise specified," but stated that schizophrenia was also a possibility. Based on defendants answers to the experts questions, he commented that defendant presented as "one of the most extreme examples" of malingering he had ever seen. The expert stated defendants goal-directed behavior was generally inconsistent with a severe mental illness.
The other expert noted that defendants mental health records were inconsistent in their diagnoses, and ranged from schizoid-effective disorder to a diagnosis that defendant was faking his illness. However, the expert also related several instances where defendant had to be restrained and given injection medication, which suggested that defendant was having psychotic episodes and suggesting there was a good possibility defendant had some form of schizophrenia. The expert felt defendant exaggerated certain things during his last interview with the expert. Both experts reported defendant stating he heard voices which told him to hurt other people and himself.
Defendants brothers testified regarding defendants behavior between June and August of 2005. They testified that defendant would leave a burner on or spill coffee and deny it. He constantly repeated himself while being driven from Fresno to Stockton. He once could not get off of the couch and was hospitalized several times because of his mental problems. Defendant would hear voices, and was unable to fill out forms at the bank, the Department of Motor Vehicles, or the Social Security Department.
Defendant testified, but could not remember his crime or the matters brought up in his brothers testimony.
DISCUSSION
I
Defendant claims the assault with a deadly weapon conviction must be reversed "because no evidence of a cognizable `assault was presented by the prosecution." We disagree, as defendants argument relies on an exceedingly narrow reading of the evidence and the crime.
"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053 (Kraft).)
In reviewing the sufficiency of the evidence, the relevant inquiry is not whether this court is convinced of defendants guilt beyond a reasonable doubt, but "`whether "`any rational trier of fact" could have been so persuaded. [Citation.]" (People v. Hernandez (2003) 30 Cal.4th 835, 861, italics omitted.) If the evidence supports the jurys verdict of guilty, the opinion of an appellate court that the evidence might also be reconciled with a contrary finding does not require reversal of the judgment. (Kraft, supra, 23 Cal.4th at p. 1054.)
Assault is "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) Assault with a deadly weapon is an "an assault upon the person of another with a deadly weapon . . . ." (§ 245, subd. (a)(1).) The mental state for assault requires "actual knowledge of the facts sufficient to establish that the defendants act by its nature will probably and directly result in injury to another." (People v. Williams (2001) 26 Cal.4th 779, 782 (Williams).)
Defendant contends that the "record affirmatively and without contradiction shows that [defendant] did not attempt to stab [Ignacio] and did not even move the knife in [his] direction." He further contends the evidence shows that when defendant was trying to flee, Ignacio "pursued [defendant] out the window and attempted to attack [him]. During this episode, [defendant] apparently dropped the knife and reached to the ground to recover it. As he was doing this, [Ignacio] reached for the hand in which [defendant] was holding the knife" and nicked his finger as he tried to grab defendants wrist.
Defendants version of the facts is incomplete. In his testimony, Ignacio agreed that, in addition to seeing defendant reaching for the knife, he also "saw [defendants] hand come from behind his head and out toward the front of his body . . . ." After defendant did this, Ignacio tried to grab defendants wrist.
Defendant was trying to escape from Irene and her father after being caught. He had already employed violence to effect his escape, having punched Irene in the face after she grabbed his ankle. Viewed in the light most favorable to the judgment, the act of bringing the knife forward was not, as defendant suggests, mere brandishing, but an effort to employ the knife to drive off Ignacio and Irene so defendant could escape. This succeeded, as Ignacio backed away and told Irene to let go after getting cut by defendants knife, which in turn allowed defendant to escape.
It is thus immaterial to defendants claim that Ignacio testified defendant did not stab him. "It is not necessary, in order to complete the offense of assault with a deadly weapon, that the intended victim be actually injured." (People v. Ingram (1949) 91 Cal.App.2d 912, 914.) Indeed, "[o]ne may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on use of a deadly weapon or instrument or, alternatively, on force likely to produce great bodily injury, whether the victim in fact suffers any harm is immaterial." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028, original italics.)
Defendant also contends that the assault "fails the `forseeability requirement of the crime of assault." He argues no assault occurred because in order for the crime to be proven, "it must have been foreseeable under the law that [Ignacio] would pursue [defendant] while [defendant] was in flight, and attempt to disarm or disable [defendant], and be injured in the process." As we have already noted, assault does not require actual injury to the victim. Neither does it require this extraordinary level of precognition.
Defendant did not have to foresee either the attempt to capture him or Ignacios pursuit through the window to be guilty of assault. The crime only requires knowledge that defendant knew that employing the knife against Ignacio to aid his escape "will probably and directly result in injury to another." (Williams, supra, 26 Cal.4th at p. 782.) Given defendants earlier use of force against Irene, the jury could properly conclude that he intended to injure Ignacio had the pursuit continued, and that he employed the means to do so. Rather than merely sufficient, the evidence of assault was overwhelming and defendants contentions to the contrary are without merit.
II
Defendant asserts his assault with a deadly weapon conviction should be reversed because trial counsels failure to request a pinpoint instruction on forseeability was ineffective assistance of counsel. Since the instruction was not warranted, we reject the claim.
To establish ineffective assistance of counsel, defendant must demonstrate counsels performance was deficient and defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 .)
Defendant contends that while the jury could have found Ignacios "willful and deliberate act of injuring himself was `foreseeable" it was not required to do so, and therefore a pinpoint instruction on forseeability was necessary for an effective defense. As we have already noted, the assault was complete before Ignacio was injured, and his forseeability claim is without merit. Counsel was not ineffective for failing to make this futile request. (People v. Price (1991) 1 Cal.4th 324, 386-387.)
III
Defendant next claims the assault with a deadly weapon conviction must be reversed because the trial court failed to give a sua sponte instruction on self-defense. His point is not well taken.
"`[T]he duty to give instructions, sua sponte, on particular defenses and their relevance to the charged offense arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendants theory of the case." (People v. Wickersham (1982) 32 Cal.3d 307, 326, disapproved on another ground in People v. Barton (1995) 12 Cal.4th 186, 201 (Barton).)
Defendant claims Ignacios pursuit and attempt to strike him provided substantial evidence to support a self-defense instruction to the assault with a deadly weapon charge. To justify an act of self-defense, a defendant must honestly and reasonably believe he is in imminent danger of bodily injury. (People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065.) In addition, "[A]ny right of self-defense is limited to the use of such force as is reasonable under the circumstances." (People v. Pinholster (1992) 1 Cal.4th 865, 966 (Pinholster).)
At most, Ignacio attempted to employ nonlethal force, his fists, against defendant, who had committed an attempted rape against his daughter. Defendant responded by employing potentially lethal force, his knife, to aid his escape. The right to self-defense does not "provide defendant with any justification or excuse for using [a deadly weapon] to repel a nonlethal attack." (Pinholster, supra, 1 Cal.4th at p. 966.) Since defendants use of force was patently unreasonable, there was no evidence supporting a self-defense instruction.
IV
Defendant contends the court erred in failing to instruct on assault and battery as lesser included offenses of attempted forcible rape, and brandishing as a lesser included offense of assault with a deadly weapon. We reject both contentions.
"[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support." (People v. Breverman (1998) 19 Cal.4th 142, 162.) "[S]uch instructions are required whenever evidence that the defendant is guilty only of the lesser offense is `substantial enough to merit consideration by the jury. [Citations.]" (Ibid.) Substantial evidence is "evidence that a reasonable jury could find persuasive." (Barton, supra, 12 Cal.4th at p. 201, fn. 8.)
A
Assault and battery are lesser included offenses of the crime of forcible rape. (See People v. Hughes (2002) 27 Cal.4th 287, 366 [battery is a lesser included offense of forcible rape]; 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against the Person, § 2, p. 639 ["Every battery includes an assault"].) Defendant argues a reasonable jury could have concluded Irene was "utterly unintimidated by [defendant]," that defendant knew this even before entering her bedroom, and his "act of brandishing a knife was nothing more than an act of bravado intended to impress the victim."
According to Irenes uncontradicted testimony, defendant hid in her bedroom, waited until she was in bed, put a knife to her throat, and told her he wanted to have sex with her. He touched her breast and started to remove her clothes until she resisted and screamed for her father. No reasonable jury could conclude under this evidence that defendant assaulted Irene but did not intend to rape her.
B
Citing People v. Wilson (1967) 66 Cal.2d 749 (Wilson), defendant argues substantial evidence supported an instruction on brandishing (§ 417) as a lesser included offense of assault with a deadly weapon.
In Wilson, the California Supreme Court reversed convictions on two murder counts and one conviction for assault with a deadly weapon where the trial court failed to give instructions on the defenses of unconsciousness and brandishing a firearm under section 417. The evidence showed that the defendant entered his wifes apartment, killed her and a man who was in her apartment, assaulted a second man as he was leaving the apartment, and drew his gun on a third man known as Champion, but allowed him to leave unharmed. (Wilson, supra, 66 Cal.2d at pp. 751, 754-755.) Defendant testified that when he entered his wifes apartment, he only intended to scare the occupants and did not intend to kill anyone. (Id. at pp. 755, 756, 760; see also People v. Lee (1999) 20 Cal.4th 47, 61.)
The court reversed the two murder convictions and the assault conviction involving the uninjured assault victim, Champion. (Wilson, supra, 66 Cal.2d at pp. 766-767.) Relevant to our discussion is the reversal of the assault charge. Without expressly holding that brandishing a firearm is a lesser included offense of assault with a deadly weapon, the court reversed the judgment of conviction "for failure to instruct on section 417." (Id. at p. 764.)
The Wilson court stated: "`An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. (Pen. Code, § 240.) Defendant did not shoot or strike Champion; had the jury been instructed on section 417 the evidence would have justified the conclusion that defendant committed a violation of that section rather than the assault found. (People v. Carmen[ 1951] 36 Cal.2d 768, 774-775 [Carmen].) Under the rules set forth above, the error must be deemed prejudicial." (Wilson, supra, 66 Cal.2d at p. 764.)
Carmen, cited by Wilson, did not state that brandishing a firearm was a lesser included offense to assault with a firearm. Rather it reiterated the rule that the trial court has a duty to instruct on any included offense shown within the evidence. (Carmen, supra, 36 Cal.2d at pp. 773-774.) The defendant in Carmen testified that he did not intend to kill or injure anyone; he merely shot to frighten the victims. (Id. at p. 772.) The court in Carmen therefore concluded that the defendants conduct might be viewed to fit within section 417 as a predicate offense for manslaughter instructions. (Id. at pp. 773-775.)
Thus, the Supreme Court in Wilson implied, but did not directly hold, that brandishing a firearm is a lesser included offense to assault with a firearm. (Wilson, supra, 66 Cal.2d at pp. 757-758.) This implication contradicted "almost a century of established law." (People v. Steele (2000) 83 Cal.App.4th 212, 221 (Steele).) As subsequent decisions have concluded, Wilson does not bind lower courts to hold brandishing is a lesser included offense of assault with a deadly weapon.
The crime of brandishing is defined as: "Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel is guilty of a misdemeanor . . . ." (§ 417, subd. (a)(1).)
Brandishing is not a lesser included offense of assault with a deadly weapon because the assault can be committed without committing the crime of brandishing. "Obviously an assault with a deadly weapon may be perpetrated without drawing or exhibiting it in a rude, angry, or threatening manner, or using it in a fight or quarrel. It might be committed by a hidden sniper, or by a stealthy prison stabbing, or in other innumerable ways without at the same time being a violation of section 417." (People v. Escarcega (1974) 43 Cal.App.3d 391, 398 (Escarcega).)
The Escarcega court concluded Wilson did not mandate a contrary conclusion. It found that, in Wilson, our Supreme Court did not consider the rationale of the lesser included offense rule, nor did it analyze the elements of assault with a deadly weapon and brandishing. (Escarcega, supra, 43 Cal.App.3d at p. 399.) Since Wilson, "the Supreme Court has consistently reaffirmed the rule that a lesser and necessarily included offense is one which must `necessarily be committed if a crime such as that charged is perpetrated." (Escarcega, supra, at pp. 399-400.) Finally, as we have already noted, the authority cited by Wilson (Carmen, supra, 36 Cal.2d 768), did not support the conclusion that brandishing was a lesser included offense of assault with a deadly weapon. (Escarcega, supra, 43 Cal.App.3d at p. 399.)
The Court of Appeal in Escarcega, which sought to give "a reasonable interpretation" to the language in Wilson, held Wilson did not support the conclusion that brandishing is a necessarily included offense of assault with a deadly weapon. (Escarcega, supra, 43 Cal.App.3d at p. 399.) The analysis in Escarcega has been confirmed by more recent authority. (Steele, supra, 83 Cal.App.4th at pp. 218-221.)
An intermediate appellate court is required to follow the holdings of the Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).) However, we agree with the courts in Steele and Escarcega, as well as the considerable weight of more recent authority, and conclude Wilson does not hold that brandishing is a lesser included offense of assault with a deadly weapon.
Even if Wilson did hold brandishing was a lesser included offense of assault with a deadly weapon, defendant still would not prevail. As we have already determined, the proof of assault with a deadly weapon was overwhelming. Lacking substantial evidence that defendant was only guilty of brandishing, the trial court had no sua sponte duty to instruct on the offense.
V
Defendant contends the trial court abused its discretion when it denied his motion to dismiss the two strike priors in furtherance of justice. We are not persuaded.
A trial court has discretion to strike, at a defendants request or on its own motion, prior felonies alleged for sentence-enhancement purposes under the Three Strikes law. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) In deciding whether to strike a prior felony conviction, the court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161 (Williams).)
We review a trial courts decision to deny a motion to strike a prior conviction for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374.) The court abuses its discretion if its consideration of the factors set forth in Williams "`falls outside the bounds of reason under the applicable law and the relevant facts. [Citations.]" (Williams, supra, 17 Cal.4th at p. 162.)
Defendant contends the courts decision was an abuse of discretion in light of his mental illness. Although both psychiatrists concluded defendant was mentally ill, they also found him to be legally sane. Defendant tried to overstate his symptoms—one psychiatrist found defendant malingered during their interview; the other thought defendant was exaggerating some of his symptoms.
Defendants current offenses, attempted rape and assault with a deadly weapon, are substantial. He hid in a young womans room, attacked her at night in bed, put a knife to her throat to rape her, and might have succeeded had she not resisted. Defendants criminal record is both serious and long. His prior strikes involve the forcible sodomy of his seven-year-old nephew and forcing another seven-year-old nephew to masturbate him. Defendant also has three prior misdemeanor convictions and a burglary conviction.
In light of defendants history of sexual assaults and the nature of his current crimes, we can not say the trial court abused its discretion.
VI
Defendant contends the Three Strikes law is cruel and unusual on its face and as applied to defendant in light of his mental illness. We disagree.
Defendant did not assert either claim to the trial court. We have previously held a constitutional objection to an aspect of a defendants sentence is forfeited if not asserted at sentencing. (People v. Marchand (2002) 98 Cal.App.4th 1056, 1060-1061.)
In addition to being forfeited, these claims are also without merit. Defendant acknowledges that the United States Supreme Court has upheld sentencing under the Three Strikes law against claims of cruel and unusual punishment based on arguments the sentences were "disproportionate," even where the current crimes were not serious felonies. (See, e.g., Ewing v. California (2003) 538 U.S. 11 (Ewing); Lockyer v. Andrade (2003) 538 U.S. 63 (Lockyer).) California courts have consistently reached the same conclusion when applying the California Constitution. (See People v. Sullivan (2007) 151 Cal.App.4th 524, 572-573.) Defendants facial challenge is thus without merit.
As for his challenge to his particular sentence, defendant does not even attempt to employ the proportionality analysis employed under the state and federal Constitutions. The only authority cited in the cruel and unusual punishment section of defendants opening brief is in support of a facial attack on the Three Strikes law. In his reply brief, defendant cites, without analysis or reference to point pages, two federal habeas decisions decided after Lockyer and Ewing in which the courts invalidated Three Strikes sentences under the Eighth Amendment as grossly disproportionate as applied to the particular defendants.
An argument is forfeited if it is raised in a perfunctory fashion without any supporting analysis and authority. (People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4.) Defendants failure to support the contention that his particular sentence is cruel and unusual forfeits the claim.
It is also without merit. The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment, but strict proportionality between crime and punishment is not required. "`Rather, [the Eighth Amendment] forbids only extreme sentences that are "grossly disproportionate" to the crime." (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1135, quoting Harmelin v. Michigan (1991) 501 U.S. 957, 1001 .)
We have already discussed defendants history of forcible sex crimes. This history, coupled with his current offenses, compels us to conclude his punishment is not grossly disproportionate under the Eighth Amendment. Our analysis under the federal Constitution leads to the same result under the California Constitution. (See People v. Martinez (1999) 71 Cal.App.4th 1502, 1511-1512.)
VII
Defendant contends his consecutive sentences violate the rule of Cunningham, supra, 549 U.S. ___ and Blakely, supra, 542 U.S. 296. As he concedes, the California Supreme Court recently reiterated the high courts previous conclusion that imposition of consecutive terms under section 669 does not implicate a defendants Sixth Amendment rights. (People v. Black (2007) 41 Cal.4th 799, 823 (Black II).) We are bound by the decisions of our Supreme Court. (Auto Equity, supra, 57 Cal.2d at p. 455.) His corresponding state constitutional claims are also without merit.
DISPOSITION
The judgment is affirmed.
We Concur:
RAYE, J.
BUTZ, J.