Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA067040 Lauren Weis Birnstein, Judge.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant Patrick Chigbolu was convicted, following a jury trial, of one count of grand theft of personal property in violation of Penal Code section 487, subdivision (a). The trial court imposed the upper term of three years in state prison.
Appellant appeals from the judgment of conviction, contending that the imposition of the upper term by the court violates his right to a jury trial as set forth in Cunningham v. California (2007) 549 U.S. 270. We affirm the judgment of conviction.
Facts
Appellant took a cart of items from Home Depot without paying for them. He was apprehended immediately after leaving the store.
Discussion
Appellant contends that the imposition of the upper term violated his right to a jury trial as set forth in Cunningham v. California, supra, because the aggravating factors were not found true beyond a reasonable doubt by a jury. Appellant makes his argument primarily to exhaust his state remedies and preserve his claim for federal review.
The California Supreme Court has explained the application of Cunningham to California's sentencing law: "[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." (People v. Black (2007) 41 Cal.4th 799, 815-816.)
The court has also explained that the "prior conviction" exception should not be read too narrowly. This exception includes "not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions." (People v. Black, supra, 41 Cal.4th at p. 819.) Examples of related issues which fall within the exception are whether the convictions are numerous or of increasing seriousness. (Id. at pp. 819-820.)
In selecting the upper term, the trial court found that appellant had numerous prior convictions. The fact that a defendant has prior convictions and that those convictions are numerous is a constitutionally valid aggravating factor which does not require a jury trial. (People v. Black, supra, 41 Cal.4th at pp. 819-820.)
The trial court also found as aggravating factors that appellant had served prior prison terms and that his performance on parole and probation had been unsatisfactory. The Courts of Appeal have found that these factors may be found true by a trial court. (People v. Yim (2007) 152 Cal.App.4th 366, 370-371; People v. Thomas (2001) 91 Cal.App.4th 212, 220-223.) Appellant points out that the constitutionality of a trial court's findings on these factors has yet to be decided by the California Supreme Court and is before the Court in People v. Towne, review granted July 14, 2004, S125677.
Appellant contends that contrary to the holding of Black, the U.S. Supreme Court's holding in Cunningham requires that all aggravating factors that the court relies on must be found true beyond a reasonable doubt by a jury, with the exception of the bare fact of a prior conviction. He acknowledges that the California Supreme Court has held to the contrary. (People v. Black, supra, 41 Cal.4th at p. 820, fn. 9.) We are bound by the decision of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.)
Disposition
The judgment is affirmed.
We concur: MOSK, J. KRIEGLER, J.