Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael E. Pastor, Judge, Los Angeles County Super. Ct. No. BA247199.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
VOGEL, J.
We decided this appeal in 2006 but our decision was vacated by the United States Supreme Court and the cause was remanded to us for reconsideration in light of Cunningham v. California (2007) ___ U.S. ___, 127 S.Ct. 856. As we did before, we affirm the judgment.
A.
A jury convicted Ikenna Mba of assault by means likely to produce great bodily injury, found he was sane at the time he committed the crime, and found true an allegation that he personally inflicted great bodily injury. (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a).) Based on Mba’s admissions, the trial court found true allegations that he had suffered two prior serious or violent felony convictions, one of which qualified as a strike, and had served one prior prison term. (§§ 667, subds. (a), (b)-(i), 667.5, subd. (b).) Mba was sentenced to state prison for a term of 17 years (comprised of a four-year upper term sentence for the assault, doubled for the strike, plus three years for the great bodily injury enhancement, five years for the prior felony conviction, and one year for the prior prison term).
All section references are to the Penal Code.
Mba appealed, challenging his upper term sentence under Blakely v. Washington (2004) 542 U.S. 296 and Apprendi v. New Jersey (2000) 530 U.S. 466. On October 27, 2006, relying on People v. Black (2005) 35 Cal.4th 1238 (Black I), we rejected his arguments and affirmed the judgment. (People v. Mba (Oct. 27, 2006, B188367) [nonpub. opn.].) At that time, Cunningham v. California, supra, 127 S.Ct. 856 was pending before the United States Supreme Court.
Mba petitioned the California Supreme Court for review to exhaust his state remedies (the petition was denied), then petitioned the United States Supreme Court for certiorari. In May 2007, his certiorari petition was granted, the judgment was vacated, and the cause was remanded to us for further consideration in light of Cunningham.
B.
In Cunningham, the United States Supreme Court overruled and vacated our Supreme Court’s decision in Black I. Last month, our Supreme Court revisited the issue and held that “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.” (People v. Black (2007) ___ Cal.4th ___ (July 19, 2007, S126182, [2007 Cal. Lexis 7604, at p. *29], Black II.) Under Black II, the prior conviction exception includes not only the fact that a prior conviction occurred, but related issues that may be determined by examining the records of the prior conviction. (Id. at p. ___ [p. *37].)
Black II also holds that, where sentencing preceded Blakely and Cunningham, this issue is not forfeited by the defendant’s failure to raise it in the trial court.
In selecting the upper term sentence in Mba’s case, the trial court referred to Mba’s admission of a prior strike, his prior unsatisfactory performance on probation, the fact that he was on parole at the time of the current offense, and the seriousness of Mba’s criminal history (both in terms of the number of offenses and the fact that they had increased in terms of the serious nature of the offenses), as well as the nature of the attack resulting in the assault conviction. Under Black II, recidivist factors sufficed to make Mba eligible for the upper term sentence, and the trial court’s recitation of the other factors is immaterial. The sentence is sound.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, Acting P.J., JACKSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.