Opinion
NOT TO BE PUBLISHED
Super. Ct. No. NCR66814
SIMS, Acting P.J.Defendant Billy Joe Rutherford was arrested in his motel room after police responded to a telephone call from the motel manager who smelled marijuana coming from inside the room. The police found defendant in the room with his “companions, ” his one-year-old son, more than 97 grams of methamphetamine, and $1,500 in cash. Weapons, pay-owe sheets and scales were seized in defendant’s room and in his truck.
Because defendant pled guilty, our statement of facts is taken from the probation report.
Facing multiple charges and enhancements, defendant entered a guilty plea to transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and admitted two prior prison term enhancements (Pen. Code, § 667.5, subd. (b)), as well as an allegation that he was presumptively ineligible for probation.
The trial court imposed the upper term of four years for the conviction and two one-year terms for the prior prison term enhancements, resulting in an aggregate prison sentence of six years. Defendant appeals. His request for a certificate of probable cause was denied.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief which sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Pursuant to that advisement, defendant filed a supplemental brief contending his male and female “companions” possessed the methamphetamine for sale without his knowledge, and he admitted to possessing “everything” in the motel room because he knew of only his own small quantity of methamphetamine for his personal use, not their much larger quantity for sale. He claims he was “mislead [sic], lied to, cohurst [sic], into pleading guilty, ” and he pled guilty only because his trial counsel told him to do so. Defendant’s claims of reduced culpability and ineffectiveness or misconduct by trial counsel challenge the validity of the plea and are barred by the denial of a certificate of probable cause. (People v. Mendez (1999) 19 Cal.4th 1084, 1098-1099; People v. Panizzon (1996) 13 Cal.4th 68, 74-75.)
In February 2007, defendant’s appellate counsel filed a supplemental opening brief contending the trial court imposed the upper term of imprisonment in violation of Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856]. Cunningham held that under California’s Determinate Sentencing Law the middle term is the statutory maximum which a judge may impose solely based on the facts reflected in the jury verdict or admitted by the defendant. (Id. at p. ___ [166 L.Ed.2d at p. 873].) Thus, except for a prior conviction, any fact that increases the penalty for a crime beyond the middle term must be tried to the jury and proved beyond a reasonable doubt. (Ibid.)
The Attorney General first asserts that defendant has forfeited the issue because he did not raise it in the trial court. The Attorney General is wrong.
Defendant was sentenced on January 3, 2006. Before that, on June 20, 2005, our Supreme Court had decided People v. Black (2005) 35 Cal.4th 1238 (Black I), which held that a defendant does not have a right to have a jury determine aggravating factors used to impose the upper term or a consecutive sentence. (Id. at p. 1244.) Black I was binding on the lower courts until it was overruled by the United States Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Defendant was not required to make a futile objection. (People v. Sandoval (July 19, 2007, S148917) ___ Cal.4th ___, ___, [9] fn. 4.)
The trial court selected the upper term because “[t]he factors in aggravation outweigh those in mitigation given the Defendant’s numerous prior convictions. The Court is of the opinion that the Court may consider the fact that he was armed with both legal and illegal weapons at the time that he possessed that methamphetamine, and is not precluded by them being stricken for purposes of sentencing. The Defendant possessed a large amount of methamphetamine, which the Court determines to be for commercial purposes.”
In People v. Black (2007) ___ Cal.4th ___ [July 19, 2007, S126182] (Black II), the California Supreme Court held that “[t]he determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ [Citation.]” (Black, supra, ___ Cal.4th ___ [at p. 23]; fn. omitted.)
Here, as noted, the trial court found that defendant had suffered “numerous prior convictions.” Under Black II, the court was authorized to make that determination by itself and was not required to submit the issue to a jury.
It is not necessary to consider whether Cunningham allowed the trial court to find that defendant (1) was armed, and (2) possessed a large quantity of methamphetamine for commercial purposes. In Black II, supra, ___ Cal.4th ___, the court determined that “the ‘statutory maximum’ sentence to which [the] defendant was exposed by the jury’s verdict was the upper term, because at least one aggravating circumstance . . . was established by means that satisfy the requirements of the Sixth Amendment.” (Id. at p. ___ [at pp. 17-18].)
Here, the aggravating circumstance that defendant had suffered “numerous prior convictions” was established by means that satisfy the Sixth Amendment. (Black II, supra, __ Cal.4th at p. ___ [at p. 23].) Under that circumstance, defendant’s guilty plea exposed him to a “statutory maximum” sentence of the upper term. (Id. at p. ___ [at pp. 17-18].) His sentence did not exceed that maximum. Defendant’s sentence was lawful.
DISPOSITION
The judgment is affirmed.
We concur: HULL , J., ROBIE , J.