Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. Super. Ct. No. VCF164257, Gerald F. Sevier, Judge.
Victor S. Haltom, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Brook Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Hill, J. and Kane, J.
-ooOoo
A jury found defendant guilty of felony vehicle theft (Veh. Code, § 10851, sub d. (a)), felony receiving stolen property (Pen. Code, § 496d, sub d. (a)), felony evading a peace officer (Veh. Code, § 2800.2, sub d. (a)), misdemeanor hit and run (Veh. Code, § 20001, sub d. (a)), misdemeanor under the influence of a controlled substance (Health & Saf. Code, § 11550, sub d. (a)) and misdemeanor operating a vehicle under the influence of alcohol or drugs (Veh. Code, § 23152, sub d. (a)). The trial court found true an allegation that defendant had suffered a prior “strike” conviction. At sentencing, the court imposed the upper term of six years for evading a peace officer, and two concurrent four-year terms for vehicle theft and receiving stolen property. No time was imposed for defendant’s misdemeanor convictions. Various fines and fees were also imposed.
The sole ground of defendant’s appeal is that the imposition of the upper term violated defendant’s constitutional rights to have aggravating circumstances relied upon to impose the aggravating term proven beyond a reasonable doubt before a jury. (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856].) While acknowledging that an aggravated term may be imposed by a sentencing court based on a prior conviction without violating a defendant’s constitutional right to have that aggravating fact proven beyond a reasonable doubt by a jury (Almendarez-Torres v. United States (1998) 523 U.S. 224; Cunningham, supra, at p. ___ [127 S.Ct. at pp. 860, 864, 868], defendant points out that in his sentencing, the trial court stated that the “determinative factor” in deciding to impose the upper term was the manner in which he operated his vehicle after the officers attempted to conduct a traffic stop. Defendant argues that notwithstanding the court’s mention of defendant’s prior convictions and other recidivist factors (previous prison time, parole violations, etc.), which arguably fall within the Almendarez-Torres exception (People v. Thomas (2001) 91 Cal. App.4th 212, 221-222, People v. McGee (2006) 38 Cal.4th 682, 700-703), in this case, the upper term was imposed because of the trial judge’s fact finding concerning the manner in which defendant dangerously drove his vehicle while fleeing the police.
Respondent asserts that defendant forfeited the right to make this constitutional challenge by failing to object on this ground in the trial court. Respondent also contends that the recidivism exception applies in this case and further that the jury’s verdict and necessarily included findings rendered the upper-term sentence constitutional. Finally, respondent urges that any Cunningham error was harmless.
After defendant’s opening brief and respondent’s brief were filed in this case, but before defendant’s reply brief was filed, the California Supreme Court handed down its decision in People v. Black (2007) 41 Cal.4th 799 (Black II). The Black case came before the California Supreme Court a second time after remand from the United States Supreme Court for reconsideration in light of its Cunningham decision handed down in January 2007 (Cunningham v. California, supra, 549 U.S. at p. ___ [127 S.Ct. 856]).
In Black II, the California Supreme Court held that as long as a single aggravating circumstance that renders a defendant eligible for the upper-term sentence has been established in accordance with the requirements of Apprendi v. New Jersey (2000) 530 U.S. 466 and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to a jury trial. (Black II, supra, 41 Cal.4th at p. 812.) Once a defendant is eligible for the upper term, the constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances. Judicial fact finding in the course of selecting a sentence within the authorized range does not implicate the jury trial and reasonable doubt components of the Fifth and Sixth Amendments. (Id. at p. 813.) This directly disposes of defendant’s sole ground of appeal. Defendant concedes this point in his reply brief. We are of course bound by the holding of the California Supreme Court in Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450.)
In defendant’s sentencing, the trial court considered among other things defendant’s prior convictions, which rendered him eligible for an upper-term sentence. It was within the discretion of the trial court to select the appropriate term and in doing so, neither the jury trial nor reasonable doubt components of the United States Constitution were implicated. (Black II, supra, 41 Cal.4th at p. 813.)
DISPOSITION
The judgment is affirmed.