Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM026652
CANTIL-SAKAUYE, J.
As part of a negotiated plea bargain, defendant Richard Craig Burton entered a plea of no contest to felony driving with a blood-alcohol level of .08 percent or more and causing injury to another. (Veh. Code, § 23153, subd. (b).) He admitted a prior conviction of driving under the influence of alcohol and/or drugs (DUI) (Veh. Code, § 23152, subd. (a)) and a prior strike conviction. (Pen. Code, §§ 288, subd. (a), 667, subd. (b)-(i), 1170.12, subd. (a)-(d).) In exchange for his plea, the prosecution dismissed another count charging defendant with DUI causing injury to another (Veh. Code, § 23153, subd. (a)) and agreed not to file any prior prison term allegations. (Pen. Code, § 667.5, subd. (b).)
In the same proceeding, but in a separate case (case No. SCR59672), defendant pled no contest to misdemeanor driving with a blood-alcohol level of .08 percent or more (Veh. Code, § 23152, subd. (b)) occurring on February 1, 2007. Defendant admitted his prior DUI and a prior boating DUI. (Harb. & Nav. Code, § 655, subd. (b).) Immediately after entry of his pleas in this case, the trial court found defendant’s pleas violated his probation in the two prior DUI cases and revoked defendant’s probation in those cases.
The trial court sentenced defendant to state prison for six years, the upper term of three years doubled for his strike prior. (Pen. Code, §§ 18, 667, subd. (e)(1), 1170.12, subd. (c)(1); Veh. Code, § 23560.)
Defendant timely appealed and the trial court issued a certificate of probable cause. Defendant claims on appeal the trial court’s choice of the upper term sentence violated his federal constitutional right to jury trial under Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We shall affirm the judgment.
FACTUAL BACKGROUND
Only a very brief description of the facts underlying defendant’s offense is necessary.
We take the facts from the probation report as there was no trial in this matter.
On February 19, 2007, just 18 days after he had been arrested for DUI in case No. SCR59672, defendant drove his vehicle off the road and struck a culvert seriously injuring his passenger. A California Highway Patrol officer met defendant in the hospital emergency room. Defendant admitted he had too much to drink and should not have been driving. A blood test three hours after the accident determined defendant had a .14 percent blood-alcohol level. His passenger’s chest was badly bruised and she had a knot, like a blood blister, on her right breast that would require surgery.
DISCUSSION
Applying the Sixth Amendment to the federal Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) that, “[o]ther 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 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant; thus, when a sentencing court’s authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely v. Washington (2004) 542 U.S. 296, 302-304 [159 L.Ed.2d 403, 412-414].)
Accordingly, in Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856], the United States Supreme Court held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Cunningham, supra, at p. ___ [166 L.Ed.2d at p. 864], overruling on this point People v. Black (2005) 35 Cal.4th 1238 (Black I), vacated in Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36].) 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.
Applying Cunningham, the California Supreme Court, in People v. Black (2007) 41 Cal.4th 799 (Black II), held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.) The court rejected a narrow reading of the “prior conviction” exception. (Id. at pp. 819-820.)
In this case, the trial court stated it imposed the upper term prison sentence on defendant “based on the aggravating factors of [defendant’s] prior prison terms, his violation of probation, and the fact that he was on probation at the time of the commission of this offense. In addition, the Court will draw attention to his increasingly serious prior record.”
Defendant claims the trial court’s reliance on these recidivist factors without notice and a jury trial with an evidentiary standard of proof beyond a reasonable doubt violated his federal constitutional right to jury trial. Defendant claims the recidivist exception recognized in Almendarez-Torres v. United States (1998) 523 U.S. 224 [140 L.Ed.2d 350] is limited to the mere fact of a prior conviction and that the aggravating factors relied on by the trial court here went beyond the mere fact of a prior conviction. Defendant disagrees with the California Supreme Court’s opinion in Black II, supra, 41 Cal.4th 799, and anticipates the overruling of both Almendarez-Torres and Black II. Defendant claims he is entitled to raise this issue because he never personally waived his constitutional right to a jury trial on the aggravating factors and because the upper term is an unauthorized sentence. Defendant claims the imposition of the upper term without a jury trial was not harmless beyond a reasonable doubt. We reject defendant’s contentions.
As pointed out in Apprendi, Blakely, Cunningham and Black II, the Sixth Amendment jury trial guarantee does not apply to prior convictions that are used to impose greater punishment. (See Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455], Blakely, supra, 542 U.S. at p. 301 [159 L.Ed.2d at p. 412]; Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864]; Black II, supra, 41 Cal.4th at pp. 818-820.) The California Supreme Court has rejected defendant’s proposed narrow construction of the exception (Black II, supra, 41 Cal.4th at pp. 819-820) and we are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The United States Supreme Court has recently denied certiorari of Black II. (Black v. California (Jan. 14, 2008) 2008 U.S. LEXIS 1051.)
It follows that the trial court properly determined and relied on defendant’s prior prison terms and his status on probation to impose the upper term. (People v. Thomas (2001) 91 Cal.App.4th 212, 223 [prior prison term allegations]; United States v. Corchado (10th Cir. 2005) 427 F.3d 815, 820 [probation status].) Defendant had no federal constitutional jury trial right as to such factors and therefore, there was no need to obtain his personal waiver of such right. As there was at least one aggravating factor that was based on defendant’s recidivism, imposition of the upper term did not infringe on defendant’s constitutional right to jury trial. (Black II, supra, 41 Cal.4th at p. 816.)
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P.J., HULL, J.