Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. KA072025, Abraham Khan, Judge.
Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez, Chung L. Mar and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Richard Cruz Falcon appeals the judgment entered after conviction by jury of possession of methamphetamine, possession of a smoking device, a misdemeanor, and being under the influence of a controlled substance, also a misdemeanor. (Health & Saf. Code, §§ 11377, subd. (a), 11364, subd. (a), 11550, subd. (a).) Falcon admitted a prior conviction within the meaning of the Three Strikes law (Pen. Code, §§ 667, subs. (b)-(i), 1170.12) and admitted a prior prison term within the meaning of Penal Code section 667.5, subdivision (b). The trial court sentenced Falcon to the upper term of three years for possession of methamphetamine, doubled to six years on account of the prior strike conviction, and struck the one-year enhancement for the prior prison term.
In our original opinion, filed October 26, 2006, we affirmed Falcon’s conviction and rejected his claim that imposition of the upper term based on factors not found true by a jury violated Falcon’s right to jury trial articulated in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]. On July 11, 2007 the United States Supreme Court, after granting Falcon’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 granted the parties an opportunity to submit supplemental briefing on the effect, if any, of Cunningham on Falcon’s appeal. We again conclude imposition of the upper term did not violate Falcon’s Sixth Amendment right to a jury trial and affirm the judgment.
BACKGROUND
In addition to the charged offenses of possession of methamphetamine, possession of a smoking device and being under the influence of a controlled substance, the information in this case alleged Falcon had one prior conviction of making a criminal threat in violation of Penal Code section 422 in March of 2001 and two prior convictions of that offense in August of 2002. The information further alleged Falcon had served a prison term as a result of the 2002 convictions.
Following his conviction by jury of the charged offenses, Falcon admitted one of these prior convictions and the prior prison term. In exchange, the People struck the remaining two alleged prior convictions. The trial court indicated it was selecting the upper term because Falcon was on parole at the time of the current offenses, Falcon had a substantial record of criminal activity, he had served a prior prison term and the People had struck two prior convictions that would have rendered Falcon eligible for a life sentence. The trial court then sentenced Falcon to the upper term of three years for possession of methamphetamine, doubled to six years under the Three Strikes law, and struck the one-year enhancement for the prior prison term.
DISCUSSION
Falcon contends that because none of the facts relied upon by the trial court to impose the upper term was found true by a jury beyond a reasonable doubt, imposition of the upper term violated his right to trial by jury. (Cunningham v. California, supra, 549 U.S. at p. ---- [127 S.Ct. at p. 877]; Blakely v. Washington, supra, 542 U.S. 296; Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435].)
Falcon’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, supra, 530 U.S. 466, 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 (2007) 41 Cal.4th 799 (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, at p. 816.) 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, supra, at pp. 819-820, citing People v. McGee (2006) 38 Cal.4th 682, 706; see also People v. Thomas (2001) 91 Cal.App.4th 212, 221-223.)
Here, Falcon specifically waived the right to a jury trial on the prior conviction and the prior prison term allegations and admitted both allegations. The factors relied upon by the trial court to impose the upper term included the prior prison term Falcon admitted as well as the trial court’s observation that Falcon had suffered two additional prior convictions that would have rendered Falcon eligible for a third strike term of 25 years to life in state prison. Because Falcon’s recidivism provided adequate factors in aggravation to support imposition of an upper term, no violation of the right to jury trial appears. Moreover, because Falcon’s prior convictions rendered him eligible for the upper term, the trial court properly could consider other factors, such as the fact Falcon was on parole and his substantial record of criminal activity. (Black II, supra, 41 Cal.4th at pp. 819-820.)
In sum, we conclude Falcon is unable to demonstrate error in the trial court’s selection of the upper term of imprisonment for the current offense.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J., ALDRICH, J.