Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06NCR03478
SIMS, Acting P.J.
Pursuant to a negotiated settlement, defendant Luis Macias Barajas pled guilty to possession of pseudoephedrine with intent to manufacture methamphetamine (Health & Saf. Code, § 11383, subd. (c)(1)). Without objection by defendant, the court imposed the upper term of six years because it found as aggravating factors that (1) defendant was on probation and parole at the time of the offense, and (2) he was “continuing to . . . participate in criminal enterprises and antisocial behavior insofar as there were narcotics involved.”
Defendant appeals, contending that the court’s imposition of the upper term cannot stand because it was based on reasons which violated his right to have any fact, other than a prior conviction, that increases the penalty tried to a jury and proven beyond a reasonable doubt as required by Apprendi v. New Jersey (2000)530 U.S. 466 at page 490 [147 L.Ed.2d 435, 455] and Blakely v. Washington (2004) 542 U.S. 296 at pages 303-305 [159 L.Ed.2d 403, 413-414].
In Cunningham v. California (2007) 549 U.S. ___ (Cunningham) [166 L.Ed.2d 856, 864], the court affirmed that the principles of Apprendi and Blakely applied to California’s Determinate Sentencing Law (DSL), thereby overruling Black I, supra, 35 Cal.45th 1238, which had held to the contrary and which was in effect at the time defendant’s plea was entered in May 2006.
The People respond that since Blakely was decided in 2004, and defendant was sentenced on June 9, 2006, defendant’s failure to object to the court’s imposition of the upper term on Blakely grounds forfeits the claim for appeal. And even if not forfeited, the People urge, the claim fails pursuant to the California Supreme Court’s opinion in People v. Black (2005) 35 Cal.4th 1238 (Black I), which held that Apprendi/Blakely did not apply to California’s upper term sentencing under the DSL. Things have changed since defendant was sentenced in 2006.
In Cunningham, supra, __U.S.__ [166 L.Ed.2d 856], the United States Supreme Court rejected Black I’s holding and confirmed that Apprendi/Blakely principles do apply to the DSL. (Cunningham, supra, at p. __ [166 L.Ed.2d 856 at pp. 863-864, 871].) On remand by the United States Supreme Court, the California Supreme Court reconsidered Black I, and on July 19, 2007, issued its opinion in People v. Black (2007) 41 Cal.4th 799 (Black II), rejecting the People’s forfeiture argument (id. at p. 811) and holding, inter alia: “[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, at p. 816.)
Based upon these changes, the People’s forfeiture argument must be rejected and their reliance on Black I is no longer warranted. However, defendant is still no better off because he has the following convictions:
On February 11, 1998, defendant was convicted of transportation/sale of a controlled substance (Health & Saf. Code, § 11352, subd. (a)) and possession for sale of a controlled substance (Health & Saf. Code, § 11351); on December 8, 1998, he was convicted of offering false identification to a peace officer (Pen. Code, § 148.9, subd. (a)) and driving without a license (Veh. Code, § 12500, subd. (a)); on February 5, 2001, defendant was sentenced to the Department of Corrections for four years for an unspecified felony; on May 2, 2003, and November 30, 2005, defendant was convicted of driving under the influence (Veh. Code, § 23152, subd. (b)); on December 17, 2004, defendant was convicted of receiving stolen property (Pen. Code, § 496, subd. (a)); and on February 1, 2006, defendant was again convicted of offering a false identification to a peace officer (Pen. Code, § 148.9, subd. (a)).
In light of defendant’s multiple prior convictions, all of which were available to the court and are not subject to Apprendi/Blakely/Cunningham requirements, there can be no reasonable doubt that in the absence of the court’s use of the one improper cited factor that he would not have received a different sentence. We are convinced beyond a reasonable doubt he would receive the upper term upon remand based upon aggravating factors that require no jury trial.
DISPOSITION
The judgment is affirmed.
We concur:
HULL, J., BUTZ, J.