Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM023135
CANTIL-SAKAUYE, J.
Defendant George Barnett Harmon pled no contest to possession of a firearm by a felon and admitted a prior serious felony conviction within the meaning of the three strikes law. The trial court sentenced him to the upper term of six years, reflecting the prior strike. Defendant obtained a certificate of probable cause, and on appeal challenges his upper term sentence.
Defendant originally contended the imposition of the upper term violates the principles of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]. He also asked for the abstract to be amended to reflect that he was sentenced with a strike. In our original opinion we rejected defendant’s Blakely claim, and ordered the trial court to amend the abstract to show defendant was sentenced under the Three Strikes law.
After we filed our first opinion in this matter, the United States Supreme Court decided that California’s Determinate Sentencing Law violated Blakely so far as it permitted imposition of the upper term based on any fact, other than a prior conviction, not tried to the jury and found true beyond a reasonable doubt. (Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham).) Upon defendant’s petition for writ of certiorari, the high court thereafter vacated our original opinion and remanded the matter to this court with directions to reconsider it in light of Cunningham. We requested and received supplemental briefing from the parties on the issue. We shall once again affirm the judgment and order a correction to the abstract.
FACTUAL AND PROCEDURAL BACKGROUND
On July 18, 2005, officers from the Paradise Police Department responded to a report of a residential burglary at the home of Robert Bentley. Defendant showed up at the Bentley’s home a few weeks before the burglary, claiming to be Michael Harmon, a half-brother of Bentley’s wife. Neither Bentley nor his wife had seen defendant in years, and suspected him of being her other brother, George Harmon.
Bentley’s wife confronted defendant about his identity a few days before the burglary. Defendant left the Bentley’s home with a .32-caliber semiautomatic handgun taken from their recreational vehicle. Sometime later, defendant called Bentley to tell him his home had been burglarized.
Defendant returned most of the stolen property to Bentley’s son. He denied committing any burglary, but admitted possessing the gun. Defendant acknowledged he was not allowed to possess firearms because he was a convicted felon.
DISCUSSION
I.
Defendant contends that his upper term sentence on count 1 violated Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856]. We disagree.
The United States Supreme Court held in Cunningham that, under California’s Determinate Sentencing Law, the middle term is the statutory maximum which a judge may impose solely based on the facts reflected in the jury verdict or admitted by the defendant. 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. (Cunningham, supra, 549 U.S. ___, at p. ___ [166 L.Ed.2d 856, 864].)
Applying Cunningham, in People v. Black (2007) 41 Cal.4th 799 (Black II), the California Supreme Court 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.)
In sentencing defendant to the upper term, the trial court relied on “defendant’s prior record and previous unsatisfactory performance on . . . parole.” Under Black II, the court’s reliance on defendant’s prior record, which contains numerous misdemeanor and two felony convictions, is sufficient justification for his upper term. We therefore do not need to determine whether defendant’s unsatisfactory performance on parole is subject to the jury trial requirement of Blakely.
We are obligated to follow Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Since there is at least one valid qualifying factor which justifies his upper term sentence, defendant’s Cunningham claim is without merit.
II.
Defendant next asserts, and the People concede, the abstract of judgment omits any reference to defendant being sentenced under the Three Strikes law. We shall direct the trial court to amend the abstract to reflect that defendant was sentenced under the two strikes provision of the Three Strikes law. (In re Candelario (1970) 3 Cal.3d 702, 705.)
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment correctly reflecting that defendant was sentenced under the second strike provision of the Three Strikes law. A certified copy of the amended abstract is to be forwarded to the Department of Corrections and Rehabilitation. As amended, the judgment is affirmed.
We concur: HULL, Acting P.J., BUTZ, J.