Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. CR911628
STEIN, Acting P. J.
Defendant James Kenneth Stallings was taken into custody after police responded to a 911 call. When the officers arrived they found defendant holding onto Jennifer Celoni. Defendant let Ms. Celoni go and started to climb over a back fence. When defendant refused to stop, despite the orders of the police, an officer used a taser gun to stop him. Ms. Celoni, who is the mother of defendant’s child, told police defendant had been visiting. She had gone with defendant to two different bars in Clearlake. After they returned to her residence, defendant became enraged and began throwing things. She grabbed their 11-year-old son and ran into the bathroom. She could hear defendant punching the walls and ripping interior doors off the walls. Defendant came into the bathroom, where he ripped the glass shower door off the rack. Ms. Celoni and the child ran into another room. Defendant followed and threw the shower door at them. He threw a television at them and followed them out of the residence. Ms. Celoni sustained a cut on her finger.
A criminal complaint was filed against defendant charging him with two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), willful cruelty to a child under circumstances likely to produce great bodily injury or death (§ 273a, subd. (a)), infliction of corporal injury on the mother of his child (§ 273.5, subd. (a)), and resisting or obstructing a police officer (§ 148, subd. (a)(1)). The complaint further alleged defendant had suffered two prior prison terms, and was ineligible for probation. On March 23, 2007, defendant pleaded guilty to inflicting corporal injury on the mother of his child. The remaining counts were dismissed with a Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754.)
All statutory references are to the Penal Code.
Defendant was sentenced on April 20, 2007. The court noted defendant had suffered 11 misdemeanor offenses during the period from 1991 to 2001, including convictions for petty theft, grand theft, false identification to a peace officer three times, battery two times, petty theft with a prior, defrauding an innkeeper, escape and assault with a deadly weapon. For the period from 1994 to 2004, defendant had suffered three felony convictions: infliction of corporal injury on a current or former spouse or cohabitant, possession of methamphetamine for sale, and petty theft with a prior. The court also noted defendant had suffered two prior prison sentences. It found defendant was statutorily ineligible for probation in the absence of a finding the case was unusual. The court found it was not an unusual case and therefore denied probation. In determining the term to impose, the court took note of the mitigating factor that defendant had voluntarily acknowledged wrongdoing at an early stage of the criminal process, but noted that in doing so, defendant had received a substantial benefit by virtue of the plea agreement. The court stated a number of aggravating factors, noting defendant had engaged in violent conduct indicating he is a serious danger to society, has an extensive prior record of criminal convictions, suffered two prior prison terms, was on parole when the crime was committed, and his prior performance on probation and parole had been unsatisfactory. The court accordingly sentenced defendant to the upper term of four years.
Defendant appeals, contending the court violated his constitutional rights by imposing the upper term because of facts not found true by a jury beyond a reasonable doubt. The contention is based on the decision by the United States Supreme Court in Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856], holding California’s determinate sentencing law violates the right to a jury trial under the Sixth and Fourteenth Amendments to the federal constitution, by assigning to the trial judge, rather than the jury, the authority to make the factual findings that subject a defendant to the possibility of an upper term sentence. However, not all factual findings must be determined by the jury. A fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. (Blakely v. Washington (2004) 542 U.S. 296, 303.) In addition, as relevant here, the right to a jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (Id. at p. 301.)
In People v. Black (2007) 41 Cal.4th 799 (Black), the California Supreme Court found, “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. . . . [¶] . . . Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely[, supra, 542 U.S. 296], the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’ ” (Black, at p. 813.) Here, defendant’s eligibility for the upper term was established by his prior convictions. The trial court therefore was entitled to select the appropriate term by balancing all the aggravating factors against the mitigating factors. In addition, the court stated on the record it would have imposed the upper term as a result of defendant’s prior convictions even if it did not consider any of the other aggravating factors. It follows that any error—and under Black there was none—would have been harmless.
Defendant contends the trial court erred by considering his prior convictions because he did not admit to them. Defendant’s criminal record was made part of the probation report. Defendant did not challenge the information in the report. No more was needed to support the trial court’s finding. (See Black, supra, 41 Cal.4th at p. 819, fn. 7.) Defendant also contends Black was wrongly decided. As defendant acknowledges, this court is required to follow Black. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Disposition
The judgment is affirmed.
We concur: SWAGER, J., MARGULIES, J.