Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. CM023917
MORRISON, J.
A jury convicted defendant Oliver Guyton of vehicle theft (Veh. Code, § 10851, subd. (a)) and, following a court trial, the court found he had served four separate prison terms (Pen. Code, § 667.5, subd. (b)). He was sentenced to state prison for eight years, consisting of the upper term of four years for the vehicle theft plus one year for each of the four prior prison terms.
On appeal, defendant contends the trial court’s use of aggravating factors to impose the upper term violated his Sixth Amendment right to have such factors determined by a jury beyond a reasonable doubt as set forth in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]. We disagree.
At the time of defendant’s sentencing, the California Supreme Court had issued its opinion in People v. Black (2005) 35 Cal.4th 1238 (Black I), holding that the Apprendi/Blakely holdings did not apply to California’s Determine Sentencing Law (DSL) However, in Cunningham v. California (2007) 549 U.S.__166 L.Ed.2d 856], the United States Supreme Court rejected Black I’s holding and confirmed that Apprendi/Blakely principles did apply to the DSL. (Id. at 549 U.S.___ [166 L.Ed.2d at pp. 863-864].
Following Cunningham, the California Supreme Court issued its opinion in People v. Black (2007) 41 Cal.4th 799 (Black II), holding, inter alia: “[I]imposition 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.” (Id. at p. 816.)
Here, the trial court imposed the upper term because the defendant had a history of violence and dangerousness, his priors were numerous, he was on parole at the time of the crime, and his prior performance on probation and parole was unsatisfactory.
The probation officer’s report discloses that defendant has seven prior felony convictions and two misdemeanor convictions. Aside from considering the four priors for which the court imposed one-year enhancements, there remained five other prior convictions for use as aggravating factors available for the court’s use in imposing the upper term. (Black II, supra, 41 Cal.4th at p. 818, fn. 7 [on appellate review, a trial court’s reasons for its sentencing choice are upheld if supported by available, appropriate, relevant evidence].)
“Accordingly, so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal 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, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black II, supra, 41 Cal.4th at p. 813.)
Consequently, the court did not err in imposing the upper term.
The judgment is affirmed.
We concur: DAVIS, Acting P.J., BUTZ, J.