Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Los Angeles County, Superior Court No. BA273420, Robert Sandoval, Judge.
Judith Vitek, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Manual Armando Arzate appeals the judgment entered following his conviction by jury of sale of a controlled substance. (Health & Saf. Code, § 11352, subd. (a).) The trial court found Arzate had a prior conviction within the meaning of the Three Strikes law (Pen. Code, §§ 667.5, subds. (b)-(i), 1170.12) and sentenced Arzate to the upper term of five years in state prison, doubled to 10 years on account of the prior conviction.
In our original opinion, filed January 23, 2006, we affirmed Arzate’s conviction and rejected his claim that imposition of the upper term based on factors not found true by a jury violated Arzate’s right to jury trial articulated in Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]. On February 28, 2007 the United States Supreme Court, after granting Arzate’s petition for writ of certiorari, vacated the judgment and remanded the matter to us for further consideration in light of Cunningham v. California (2007) 549 U.S. ---- [127 S.Ct. 856, 166 L.Ed.2d 856]. We requested and received supplemental briefing from the parties on the effect, if any, of Cunningham on Arzate’s sentence. We again conclude imposition of the upper term did not violate Arzate’s Sixth Amendment right to a jury trial and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The underlying sales incident.
On October 26, 2004, at approximately 4:30 p.m., undercover officers of the Los Angeles Police Department observed Arzate in the area of 7th and Matteo Streets, an area known for the use and sale of narcotics. Using binoculars, an officer saw Arzate engage one Sherri Rosenblum in a hand-to-hand exchange of a small object for currency. Rosenblum crossed the street with the object and placed it into a glass pipe, which she lit and smoked. Arzate then engaged in a hand-to-hand exchange of an off-white solid object for an unknown amount of paper currency with one José Lopez. This exchange occurred within 10 feet of the undercover officer who was not using binoculars. Arzate, Rosenblum and Lopez were arrested. Arzate had $81 and Lopez had 0.30 grams of a solid substance containing cocaine base. An officer testified that 0.03 grams of cocaine base has a street value of five dollars and constitutes a usable quantity.
A jury convicted Arzate as charged.
2. Sentencing.
The trial court found Arzate had a prior conviction of first-degree burglary in 1981 within the meaning of the Three Strikes law. Although Arzate had been sentenced to prison on several prior occasions, none of these prison terms survived the five-year washout provision of Penal Code section 667.5, subdivision (b). However, the People asked the trial court to determine whether Arzate had suffered these prior convictions and served the prior prison terms for the purpose of sentencing. After reviewing the relevant evidence, the trial court found Arzate previously had been convicted of violating Penal Code section 666 in 1995, and Health and Safety Code section 11350, subdivision (a) in 1997.
Defense counsel asked the trial court to strike the prior burglary conviction based on the age of Arzate’s prior convictions, the absence of any prior convictions involving violence or weapons and the fact this case involved five dollars worth of rock cocaine in a skid row area. The trial court denied the request and imposed the upper term for sale of a controlled substance finding Arzate had “served prior prison terms” and he had failed in his performance on probation and parole. The trial court found no factors in mitigation. Defense counsel objected to the trial court’s use of aggravating factors that had not been found true by a jury.
DISCUSSION
Arzate contends the factors the trial court relied upon to impose the upper term, namely, Arzate’s service of prior prison terms and his poor performance on parole and probation, do not constitute the “fact” of a prior conviction. Arzate asserts the quality of his performance on probation and parole requires findings in addition to the fact of his prior convictions and the trial court necessarily made these findings based on evidence provided by Arzate’s probation officer or parole agent. Arzate asserts reliance on these findings to increase Arzate’s punishment violated Cunningham in that a jury might not have found his performance on probation or parole was unsatisfactory. Arzate further asserts this court cannot tell, based on the present record, whether the trial court would have imposed the upper term if it had excluded the improper factors from consideration. Arzate concludes the matter must be remanded for resentencing.
Arzate’s arguments are not persuasive.
Blakely v. Washington, supra, 542 U.S. at p. 301 and Cunningham v. California, supra, 549 U.S. at p. ---- [127 S.Ct. at p. 877], reiterated the rule, stated in Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435], that: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) Cunningham concluded the middle term is the statutory maximum sentence under the California Determinate Sentencing Law (DSL), overruling People v. Black (2005) 35 Cal.4th 1238, 1269 (Black I). Cunningham held that “[b]ecause the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.” (Cunningham, supra, 127 S.Ct. at p. 871.)
Thereafter, in People v. Black (July 19, 2007, S126182) --- Cal.4th --- [2007 Cal. Lexis 7604] (Black II), our Supreme Court held that where at least one aggravating circumstance relied upon by the trial court to impose the upper term is justified based upon the appellant’s record of prior convictions, the imposition of the upper term does not infringe the appellant’s constitutional right to jury trial. (Black II, supra, --- Cal.4th at p. ---- [2007 Cal. Lexis 7604, at p. 29].)
Further, Black II interpreted the prior conviction exception broadly to include sentencing determinations that require a mere examination of court records to determine whether a defendant has suffered prior convictions and whether those convictions are “ ‘numerous or of increasing seriousness’. . . .” (Black II, at p. 11, citing People v. McGee (2006) 38 Cal.4th 682, 706; see also People v. Thomas (2001) 91 Cal.App.4th 212, 221-223.)
Here, the trial court found Arzate had a prior conviction of first degree burglary in 1981 within the meaning of the Three Strikes law. Additionally, the trial court found Arzate had prior convictions of petty theft with a prior in 1995 and possession of a controlled substance in 1997. As indicated in Black II, supra, these findings rendered Arzate eligible for the upper term. Moreover, because Arzate’s prior convictions rendered him eligible for the upper term, the trial court properly could consider other factors, such as Arzate’s poor performance on probation and parole, in determining whether the upper term was appropriate in this case. (Black II, supra, at p. 9.)
In addition to the prior convictions found true by the trial court, the report of the probation officer reveals Arzate additionally was convicted of shoplifting in 1973, petty theft in 1974, first degree burglary in 1979 and 1987, driving under the influence in 1987, and being under the influence of a controlled substance in 1991, 1992, 1994 and 1995. Further, Arzate was removed or deported from this country in 1979, 1990 and 1994.
In sum, Arzate’s claims of constitutional error in the imposition of the upper term fail.
DISPOSITION
The judgment is affirmed.
We concur
CROSKEY, J., KITCHING, J.