P. v. Dunlap

Filed 12/1/06 P. v. Dunlap CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
DWAYNE DUNLAP,
Defendant and Appellant.
F049177
(Super. Ct. No. 05CM7144)
OPINION
THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Louis F.
Bissig, Judge.
Ross Thomas, 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, Assistant Attorney General, Lloyd G. Carter and Louis M.
Vasquez, for Plaintiff and Respondent.
-ooOoo-
* Before Vartabedian, Acting P.J., Levy, J. and Gomes, J.

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2.
A jury convicted Dwayne Dunlap of possession of marijuana while in a state
prison (Pen. Code, § 4573.6). In a bifurcated proceeding, the jury found true special
allegations that Dunlap served three prior prison terms within the meaning of Penal Code
section 667.5, subdivision (b). The court sentenced Dunlap to an aggregate term of seven
years, comprised of the upper term of four years on the possession charge and one year
for each of the three prison priors. The court ordered the sentence to run fully
consecutive to the sentence Dunlap was then serving.
Dunlap contends on appeal the trial court violated the constitutional principles
enunciated in Blakely v. Washington (2004) 542 U.S. 296 in imposing the upper prison
term by relying on aggravating sentencing factors not determined by a jury beyond a
reasonable doubt. Dunlap recognizes the California Supreme Court held no such right
exists under California’s determinate sentencing laws (People v. Black (2005) 35 Cal.4th
1238) and this court is bound to follow that decision (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.) Dunlap “makes this argument to preserve the issue for
possible federal court review.” As such, we reject Dunlap’s claim. (We are aware the
United States Supreme Court has agreed to review the question of the applicability of
Blakely to California sentencing in People v. Cunningham (Apr. 18, 2005, A103501
[nonpub. opn.]), cert. granted sub nom. Cunningham v. California (2006) ___ U.S. ___
[126 S.Ct. 1329].)
DISPOSITION
The judgment is affirmed.

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