Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 1223016, Timothy W. Salter, Judge.
Gene D. Vorobyov, 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, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Gomes, Acting P.J., Dawson, J., and Hill, J.
INTRODUCTION
On March 26, 2007, appellant, Vladimir Sergey Anischenko, was charged in an information with residential burglary (Pen. Code, § 459, count one) and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a), count two). The information alleged appellant qualified for a prior prison term enhancement (§ 667.5, subd. (b)). The information also alleged that appellant had a prior serious felony conviction within the meaning of section 667, subdivision (a) and within the meaning of the three strikes law (§ 667, subd. (d)).
Unless otherwise specified, all statutory references are to the Penal Code.
On January 24, 2008, appellant pled no contest to count two, a jury trial was commenced on count one, and the allegations concerning prior convictions were bifurcated. On January 31, 2008, the jury found appellant guilty of first degree burglary. On February 22, 2008, the trial court found the special allegations true.
On March 28, 2008, the trial court sentenced appellant to the upper term of six years, doubled pursuant to the three strikes law to 12 years. The court imposed a five-year enhancement pursuant to section 667, subdivision (a) for a total prison term of 17 years. On the motion of the prosecutor, the court struck the prior prison term enhancement. On appeal, appellant contends that imposition of the upper term to count one pursuant to the amended version of section 1170 violated his due process rights under the Fifth, Sixth, and Fourteenth Amendments and was an unconstitutional ex post facto law.
FACTS
On February 11, 2007, Katherine Jessup was sitting on the front porch of her Modesto home when appellant, the son of a neighbor across the street, approached her and asked if her brother was home. Jessup said her brother was away. She was surprised by the question because she did not know appellant very well. Appellant had parked a van oddly in the street at the end of her next door neighbors’ home and partially blocked her driveway. Appellant went over to his van and talked on his cell phone. Jessup went inside her home.
When Jessup went back outside about 45 minutes later, appellant’s van had been moved in front of the driveway of the Mehtas, her next door neighbors. The Mehtas were out of town. Jessup was watching their house for them and had a key. A cyclone fence to the Mehtas yard was pulled back. The fence or gate was also down. Jessup went inside the Mehta home, attempted to call a son of the Mehtas, and then called the police. A bedroom window was broken and it appeared from dust patterns that property inside the Mehta home was missing.
The Mehtas testified that several items were missing from the home including a DVD player, a VCR player, a computer game, stereo equipment, a Movado watch and $500.
When Jessup’s brother returned home, he was able to play a videotape for the police from a newly installed security camera that partially showed the Mehta home. The videotape had date and time indicators. The tape showed appellant coming to the side of the Mehta home and leaving it. The videotape was accepted into evidence and played for the jury. The videotape revealed that as appellant was leaving the vicinity of the Mehta home, he was carrying a bag.
Appellant testified that the videotape showed him leaving the Mehta home carrying a bulky white sheet. Appellant said that he was carrying his own tools in boxes. Appellant had left the tools in a garbage bin on the Mehta property several days earlier.
At the sentencing hearing, the court rejected defense counsel’s argument that appellant’s drug and alcohol dependence triggered by the death of his father constituted a mitigating factor. As aggravating factors, the court noted that appellant served a prior prison term, he was on parole when he committed the instant offense, his prior performance on probation or parole was unsatisfactory, appellant broke into his neighbors’ home, and the court believed appellant committed perjury when he testified at trial.
DISCUSSION
Appellant argues that his upper term sentence on count one violated his due process rights under the Fifth, Sixth, and Fourteenth Amendments and his right to a jury trial under the Sixth and Fourteenth Amendments because the trial court applied, without a jury trial on those factors, an upper term sentence. Appellant notes he did not waive his right to a jury trial on this issue and did not admit any aggravating factor used by the trial court. Appellant acknowledges that the trial court applied the amended version of the Determinate Sentencing Law (DSL), section 1170, passed by the Legislature on March 30, 2007, but further contends that the imposition of the upper term sentence violated the constitutional prohibition on ex post facto laws because appellant committed his offense prior to the passage of the amended DSL. (Amended by Stats. 2007, ch. 3, § 2 (S.B. 40).) Appellant further challenges the single factor rule that permits the imposition of an upper term sentence upon a single aggravating factor. We will affirm.
Appellant acknowledges the California Supreme Court found in People v. Sandoval (2007) 41 Cal.4th 825, 845-857 (Sandoval), that the amended DSL could be applied retroactively to offenses, such as his, that occurred prior to the amendment to the statute. (Id. at pp. 856-857.) Appellant challenges the reasoning of Sandoval. We are bound by the holding in Sandoval and therefore reject appellant’s challenges to Sandoval. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales, Inc.).)
The California Supreme Court also held that a defendant’s criminal history can be used by a court in sentencing a defendant without violating the defendant’s right to a jury trial. (People v. Black (2007) 41 Cal.4th 799, 818-820 (Black II).) Appellant further challenges the constitutionality of this holding. We note that the new DSL has been found not to violate due process. (Sandoval, supra, 41 Cal.4th at p. 855.) Finally, Black II recognized that a defendant can be given the upper term based on a single aggravating factor. (Black II, supra, 41 Cal.4th at p. 815.) We again note that we are bound by the rulings of our high court. (Auto Equity Sales, Inc., supra, 57 Cal.2d at p. 455.)
Appellant’s offense occurred on February 11, 2007; the amended DSL became operative on March 30, 2007. The trial court could impose an upper term sentence pursuant to the amendment without its ruling violating the ex post facto clause or appellant’s due process and equal protection rights. The court was permitted to rely on a single aggravating factor. Appellant’s prior conviction qualified as an aggravating factor that does not require a jury finding. (Black II, supra, 41 Cal.4th at p. 818.)
Appellant had a felony robbery conviction in 2002. Appellant also had two misdemeanor convictions for driving under the influence of drugs or alcohol in 2002 and 2005, a misdemeanor conviction in 2005 for counterfeiting, and a misdemeanor conviction in 2007 for possession of a hypodermic syringe. Appellant violated his parole three times in 2005 and twice in 2007.
DISPOSITION
The judgment is affirmed.