P. v. Pack 12/28/06 CA 2/3

Filed 12/28/06 P. v. Pack CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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 THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
CHARLES PACK,
Defendant and Appellant.
B187954
(Los Angeles County
Super. Ct. No. LA049451)
APPEAL from a judgment of the Superior Court of Los Angeles County, Susan
M. Speer, Judge. Affirmed.
Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Ana R. Duarte and Dawn S.
Mortazavi, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________

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Defendant and appellant Charles Pack appeals from the judgment entered
following a jury trial that resulted in his conviction for assault with a deadly weapon.
The trial court sentenced Pack to a term of 13 years in prison.
Pack contends imposition of an upper term sentence violated his right to trial by
jury (Blakely v. Washington (2004) 542 U.S. 296). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
Viewed in accordance with the usual rules governing appellate review (People v.
Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299,
1303-1304), the evidence presented at trial established the following.1 Pack was a
transient. On December 18, 2004, Pack slashed another transient, Gregory Westervelt,
with a knife, cutting him twice in the back and once on his arm. Pack’s statements
before, during, and after the attack indicated he was retaliating for Westervelt’s punching
him earlier in the day. Both Pack and Westervelt were intoxicated.
2. Procedure.
Trial was by jury. Pack was found guilty of assault with a deadly weapon (Pen.
Code, § 245, subd. (a)(1)).2 In a bifurcated proceeding, the trial court found Pack had
suffered a prior conviction of a serious or violent felony (§§ 667, subds. (a)(1), (b) – (i),
1170.12, subds. (a) – (d).) Pack’s Romero3 motion was denied. The trial court sentenced
Pack to a term of 13 years in prison pursuant to the Three Strikes law. It also imposed a
restitution fine, a suspended parole revocation fine, and a court security fee. Pack
appeals.
DISCUSSION
1. Imposition of the upper term did not violate Blakely v. Washington.
At sentencing, the trial court imposed a sentence of four years for the assault, the
1 Because the circumstances of the crime are not directly relevant to our analysis of
the issue presented on appeal, we limit discussion of the facts to a brief summary.
2 All further undesignated statutory references are to the Penal Code.
3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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upper term for the offense. The trial court observed that the crime involved great
violence; the victim was particularly vulnerable; the crime involved planning; Pack
demonstrated a pattern of violence; Pack’s previous crimes were numerous and
increasing in severity; Pack had served a prior prison term, and was on parole at the time
of the conviction; Pack was an alcoholic, and his alcoholism had contributed to his past
crimes; and Pack was a transient with no family support. The trial court found only one
mitigating factor to exist, i.e., that the victim had initiated the confrontation.
Pack contends that imposition of the upper term violated his constitutional right to
a jury trial, citing Blakely v. Washington, supra, 542 U.S. 296. As Pack acknowledges,
our Supreme Court resolved the issue adversely to him in People v. Black (2005) 35
Cal.4th 1238. Black concluded that “the judicial factfinding that occurs when a judge
exercises discretion to impose an upper term sentence or consecutive terms under
California law does not implicate a defendant’s Sixth Amendment right to a jury trial.”
(Id. at p. 1244.) We are bound by Black. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)4 Accordingly, Pack’s Blakely claim lacks merit.
4 The United States Supreme Court is currently reviewing the effect of Blakely on
California’s sentencing scheme. (People v. Cunningham (Apr. 18, 2005, A103501)
[nonpub. opn.], cert. granted sub nom. Cunningham v. California ( Feb. 21, 2006, No. 05-
6551) ___U.S.___ [126 S. Ct. 1329, 164 L. Ed. 2d 47].)

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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
KLEIN, P. J.
KITCHING, J.

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