Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA061582, Cynthia Rayvis, Judge.
Stephen M. Hinkle, 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, Assistant Attorney General, Larry M. Daniels and Elaine F. Tumonis, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Marque Fricks appeals from the judgment entered following a jury trial that resulted in his convictions for second degree robbery and second degree commercial burglary. Fricks was sentenced to a prison term of 17 years, 4 months. Fricks’s sole contention on appeal is that imposition of consecutive sentences violated his jury trial and due process rights (Blakely v. Washington (2004) 542 U.S. 296; Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856].) We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
On July 5, 2006, Fricks burglarized a Hawthorne doughnut shop and robbed two employees at gunpoint.
Because the evidentiary details underlying the substantive offenses are not directly relevant to the sentencing issue presented on appeal, we do not recite them here.
2. Procedure.
Trial was by jury. Fricks was convicted of two counts of second degree robbery (Pen. Code, § 211) and one count of second degree commercial burglary (§ 459). The jury found Fricks had personally used a firearm during commission of the robberies (§ 12022.53, subd. (b)). The trial court sentenced Fricks to a term of 17 years, 4 months in prison, configured as follows. On the base count (count 1, second degree robbery), the court imposed the midterm of three years, plus 10 years for the section 12022.53, subdivision (b) enhancement. For the second robbery conviction (count 2), the court imposed a consecutive sentence of 1 year (one-third the midterm), as well as a consecutive sentence of 3 years, 4 months (one-third the midterm) on the firearm enhancement. Sentence on count 3, commercial burglary, was stayed pursuant to section 654. The court further imposed a restitution fine, a suspended parole revocation fine, and a court security fee. Fricks appeals.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
1. The imposition of consecutive sentences did not violate Fricks’s jury trial or due process rights.
As noted, at sentencing the trial court imposed consecutive sentences on counts 1 and 2 and their related firearm enhancements. Fricks urges that imposition of consecutive sentences violated his jury trial and due process rights because the court’s sentencing choice was impliedly based on factors not admitted or found true by a jury.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. In Cunningham, the court held that California’s determinate sentencing law violated a defendant’s federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments by assigning to the trial judge, rather than the jury, the authority to make factual findings that subject a defendant to the possibility of an upper term sentence. (Cunningham v. California, supra, 127 S.Ct. at p. 871; see People v. Black (2007) 41 Cal.4th 799, 805, 808-809 (Black II); People v. Sandoval (2007) 41 Cal.4th 825, 831-832.)
After Fricks filed his opening brief, the contention that the imposition of consecutive terms violates Blakely and Cunningham was rejected by our Supreme Court. (Black II, supra, 41 Cal.4th at pp. 820-823.) Black II explained that Cunningham did not undermine the previous conclusion in People v. Black (2005) 35 Cal.4th 1238 (Black I), overruled in part by Cunningham v. California, supra, 127 S.Ct. at pages 868-871, vacated sub nom. Black v. California (2007) ___ U.S. ___ [127 S.Ct. 1210, 167 L.Ed.2d 36], that imposition of consecutive terms under section 669 does not implicate a defendant’s Sixth Amendment rights. (Black II, supra, at p. 821.) Blakely’s underlying rationale is inapplicable to the decision to impose consecutive or concurrent sentences. (Id. at p. 821.) Blakely “treats the crime together with a fact that is a prerequisite to eligibility for a greater punishment as the functional equivalent of a greater crime.” (Ibid.) In deciding whether to impose consecutive or concurrent terms, a trial court may consider aggravating and mitigating factors, but is not required to justify the imposition of consecutive terms by reference to an aggravating circumstance. (Id. at p. 822.) “The determination whether two or more sentences should be served in this manner is a ‘sentencing decision[ ] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’ [Citation.]” (Black II, supra, at p. 823.) As Fricks acknowledges, we are bound by Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we conclude imposition of consecutive sentences did not violate Fricks’s jury trial or due process rights.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J. CROSKEY, J.