Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF04509
CANTIL-SAKAUYE, J.
On August 18, 2004, the People filed a complaint against defendant Timothy Dale Dufore alleging two counts: attempted murder (count 1 - Pen. Code, §§ 664/187, subd. (a)) and assault with a firearm upon a peace officer (count 2 - § 245, subd. (d)(1)). The complaint further alleged as to both counts that defendant intentionally and personally discharged a firearm during the commission of the offense (§ 12022.53, subd. (c)), and as to count 2 that defendant used a firearm, a shotgun (§ 12022.5, subd. (a)).
Hereafter, undesignated statutory references are to the Penal Code.
On February 17, 2005, defendant waived preliminary hearing on the following agreed terms: (1) he would be held to answer on all the allegations of the complaint; but (2) the People would file an information alleging only the violation of section 245, subdivision (d)(1), with no enhancements or additional counts, on the understanding that those could be refiled if the case did not settle. The trial court held defendant to answer on those terms.
The People thereafter filed an information alleging a single count under section 245, subdivision (d)(1). On April 18, 2005, after defendant was advised that conviction on that count could lead to a maximum prison term of eight years or probation for up to five years, he pled no contest.
The trial court imposed the upper term of eight years in state prison, but suspended execution of the sentence and granted probation for five years, with terms and conditions including attendance at a rehabilitation program and abstention from using controlled substances or alcohol. In choosing the upper term, the trial court found that defendant had numerous prior convictions for driving under the influence, that he was on probation when the crime was committed (as he admitted in open court), and that his prior performance on probation was unsatisfactory.
On May 17, 2006, the People filed a petition to revoke probation, alleging that defendant violated probation by consuming alcohol. On May 22, 2006, defendant admitted the violation. On June 19, 2006, the trial court revoked probation, but then reinstated it.
On November 20, 2007, the People filed a second petition to revoke probation, again alleging that defendant had violated probation by consuming alcohol. On November 26, 2007, defendant admitted the violation. On December 21, 2007, the trial court revoked probation and imposed the previously suspended eight-year sentence.
Defendant appeals, contending that the imposition of the upper term violated his constitutional rights to a jury trial, proof beyond a reasonable doubt, and due process. We shall affirm.
All facts are taken from the initial plea hearing and the subsequent probation hearings.
On August 15, 2004, defendant’s mother notified the Yuba County Sheriff’s Department that he was under the influence of alcohol and had a firearm. After uniformed officers in marked patrol cars arrived at defendant’s home and tried to persuade him to put his shotgun down, defendant fired a shot from inside the house through the front door in the officers’ direction. Following his surrender, the officers determined that the gun had jammed when defendant tried to fire a second round that was the wrong size.
On March 18, 2006, sheriff’s deputies arrived at the home of defendant, then on probation and prohibited from consuming or possessing alcohol, to find him under the influence, and on May 16, 2008, a probation officer visited defendant’s residence and found that he had consumed alcohol. Defendant admitted that he had consumed alcohol over the last several days. A search of his bedroom discovered empty, full, and partially full beer cans and bottles.
On November 19, 2007, contacted by his probation officer at his home, defendant admitted that he had consumed a 12-pack of beer. The probation officer also found an empty 24-ounce beer container in defendant’s possession.
DISCUSSION
Defendant does not attack the trial court’s ruling revoking probation and imposing the previously suspended prison term, but only the court’s original decision to impose the upper term. According to defendant, the court based that decision on factors which were constitutionally required to be tried to a jury and proven true beyond a reasonable doubt. (Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham).) We disagree.
The trial court relied first on defendant’s numerous prior convictions. Our Supreme Court has held that the trial court may properly use this sentencing factor to impose the upper term under Cunningham without submitting the question to the jury, and that if the court used one legally sufficient aggravating circumstance it does not matter whether the court also used others which are not legally sufficient. (People v. Black (2007) 41 Cal.4th 799, 816 (Black II); cf. People v. Osband (1996) 13 Cal.4th 622, 728.) We are bound by Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant contends that Black II was wrongly decided, acknowledging that he is raising this contention only to preserve it for federal review.
The trial court also relied on the fact that defendant was on probation when he committed the offense. Our Supreme Court has now held that a judge may also find this aggravating circumstance true without submitting it to a jury under Cunningham. (People v. Towne (2008) 44 Cal.4th 63, 79.)
Because the trial court used two proper factors to impose the upper term, defendant’s challenge to his sentence fails.
DISPOSITION
The judgment is affirmed.
We concur: MORRISON, Acting P.J., ROBIE, J.