Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara Brian E. Hill, Judge, Super. Ct. No. 1217251.
Suzan E. Hier, Richard Lennon, 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, Senior Assistant Attorney General, Keith H. Borjon, Supervising Deputy Attorney General, A Scott Hayward, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Robert Dunstan Dickenson IV appeals a judgment of conviction entered after he pleaded nolo contendere to possession of methamphetamine, unlawful possession of Vicodin, driving under the influence of a controlled substance, possession of narcotics paraphernalia, and being under the influence of methamphetamine, with an admission that he served a prior prison term. (Health & Saf. Code, §§ 11377, subd. (a), 11550, subd. (a) [counts 1 & 5]; Bus. & Prof. Code, §§ 4060, 4140 [counts 2 & 4]; Veh. Code, § 23152, subd. (a) [count 3]; Pen. Code, § 667.5, subd. (b).) We conclude that the trial court properly imposed an upper-term sentence, and affirm.
FACTS AND PROCEDURAL HISTORY
In the early morning of January 6, 2007, a California Highway Patrol officer saw Dickenson driving his vehicle erratically on Chapala Street in Santa Barbara. The officer stopped and detained Dickenson, and administered field sobriety tests. Dickenson admitted to being under the influence of drugs. A search of Dickenson and his belongings revealed methamphetamine, Vicodin, and narcotics paraphernalia.
The statement of facts rests upon evidence received at the preliminary examination.
Following advice of and waiver of his constitutional rights, Dickenson pleaded nolo contendere to all counts and admitted the truth of the prior prison term allegation. (Health & Saf. Code, §§ 11377, subd. (a), 11550, subd. (a) [counts 1 & 5]; Bus. & Prof. Code, §§ 4060, 4140 [counts 2 & 4]; Veh. Code, § 23152, subd. (a) [count 3]; Pen. Code, § 667.5, subd. (b).)
During sentencing, the trial court pointed out that Dickenson had suffered three prior convictions for driving under the influence, nine convictions of driving with a suspended driver's license, a conviction of operating a watercraft with a blood alcohol level exceeding 0.08 percent, and a conviction of driving with an open container of alcohol in the vehicle. The court remarked that Dickenson's convictions spanned a period of 20 years, and that his "driving history is atrocious." The court sentenced him to four years' imprisonment, consisting of an upper three-year term for count 1, and one year for the prior prison term allegation. It also imposed 90 days' confinement in county jail for each of the remaining counts, to be served concurrently to count 1. The court imposed fees and fines and awarded Dickenson 122 days' presentence custody credits.
Dickenson appeals and challenges the trial court's imposition of the upper term.
DISCUSSION
Dickenson argues that imposition of the upper term of imprisonment violated his Sixth Amendment right to a jury trial because the factors warranting the upper term were neither admitted nor found true by the jury. (Cunningham v. California (2007) 549 U.S. 270, __ [166 L.Ed.2d 856, 863-864.) He asserts that the holding of Apprendi v. New Jersey (2000) 530 U.S. 466, 489-490, should apply to recidivism sentencing factors. (Ibid. ["[I]t is arguable that . . . a logical application of our reasoning today should apply if the recidivist issue were contested . . . ."].) Dickenson contends that the probation report describing his 20-year history of criminal convictions is an unreliable judicial record. He adds that many of his prior convictions were misdemeanor offenses related to his drug addiction.
In Cunningham v. California, supra, 549 U.S. 270, __ [166 L.Ed.2d 856, 863-864], the Supreme Court held that the federal Constitution's jury-trial guarantee proscribes a sentencing scheme that permits the trial court to impose a sentence above the statutory maximum based upon a fact, other than a prior conviction, not found by a jury or admitted by the defendant.
In People v. Black (2007) 41 Cal.4th 799, 819-820, our Supreme Court held that a trial court may impose an aggravated sentence based upon the conclusion that the defendant's prior convictions are numerous or of increasing seriousness. "The determinations whether a defendant has suffered prior convictions, and whether those convictions are 'numerous or of increasing seriousness' [citation], require consideration of only the number, dates, and offenses of the prior convictions alleged. . . . This type of determination is 'quite different from the resolution of the issues submitted to a jury, and is one more typically and appropriately undertaken by a court.'" (Ibid.)
In imposing the upper term, the trial court relied upon Dickenson's "atrocious" and "nonstop" criminal record. It recounted the number and types of criminal convictions as set forth in the probation report. (People v. Black, supra, 41 Cal.4th 799, 818, fn. 7 [presumption that trial court reads and considers probation report in determining sentence].) The trial court's reliance upon this factor does not violate the holding of Cunningham v. California, supra, 549 U.S. 270 [166 L.Ed.2d 856], or Dickenson's Sixth Amendment right to a jury trial. (Black, at pp. 818-820; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The judgment is affirmed.
We concur: YEGAN, J., PERREN, J.