Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. BA224084. Robert Perry, Judge.
Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Bill Lockyer, Attorney General, Dane R. Gillette and Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Theresa A. Patterson and April S. Rylaarsdam, Deputy Attorneys General, for Plaintiff and Respondent.
COOPER, P. J.
INTRODUCTION
Appellant Lawrence Banner challenges the sentence on his false imprisonment conviction on the ground the imposition of the high term on the basis of facts found by the trial court, not the jury, violated his right to due process. We conclude the sentence does not violate due process.
BACKGROUND AND PROCEDURAL HISTORY
Appellant, along with De Anthony Simmons and Lloyd Tillet, attempted to rob Majdi Girgis, who owned a used car lot on Sunset Boulevard. In the process, they threatened employee Joseph Ghazal with a gun and tied him up inside the trailer that served as his office. They also beat and kicked Girgis, dragged him to a car, placed him in the trunk of a car, and drove the car a short distance just as the first police car arrived on the scene.
A jury convicted appellant of kidnapping to commit robbery, attempted second degree robbery and assault with a firearm with respect to Girgis, and kidnapping and false imprisonment by violence with respect to Ghazal. The jury also found several enhancement allegations true. The trial court sentenced appellant to a second strike term of life plus 39 years. Appellant appealed on numerous grounds, and this court reversed his kidnapping conviction with respect to Ghazal and remanded for re-sentencing.
Following remittitur, the trial court sentenced appellant to a term of life plus 23 years, including an upper term for the false imprisonment conviction.
In November 2005, we issued an opinion affirming appellant’s convictions and sentence. (People v. Banner (Nov. 28, 2005, B181404) [nonpub. opn.]). Relying on People v. Black (2005) 35 Cal.4th 1238, we rejected appellant’s argument that his right to jury trial was violated by the court’s finding of aggravating factors at sentencing.
On February 20, 2007, the United States Supreme Court issued an order in this case granting certiorari, vacating the judgment, and remanding to this court for further consideration in light of its decision in Cunningham v. California (2007) 549 U.S. 270 (Cunningham), which overruled People v. Black, supra, 35 Cal.4th 1238. Pursuant to the mandate of the United States Supreme Court, we have recalled the remittitur.
DISCUSSION
Citing Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), appellant contends the imposition of the upper term for the false imprisonment count violated due process, in that it was based upon facts found by the court, not a jury.
Apprendi, supra, 530 U.S. 466, essentially requires any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum to be charged, submitted to a jury, and proved beyond a reasonable doubt. (Id. at p. 490.) Apprendi explained that recidivism is distinguishable from other matters used to increase a sentence because (1) recidivism traditionally has been used by sentencing courts to increase the length of a sentence, (2) recidivism does not relate to the commission of the charged offense, and (3) prior convictions result from proceedings that include substantial procedural protections. (Id. at p. 488.)
The trial court based its choice of the upper term upon appellant’s “numerous” prior convictions, which is permissible under Apprendi, Blakely, and Cunningham. (People v. Black (2007) 41 Cal.4th 799, 819-820.) Appellant’s contention therefore has no merit.
DISPOSITION
The judgment is affirmed.
I concur: FLIER, J.