Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Super.Ct.No. SWF 012417
ORDER MODIFYING OPINION AND DENIAL OF PETITION FOR REHEARING
Gaut, J.
Appellant’s petition for rehearing is denied. The opinion filed in this matter on November 6, 2007, is modified as follows:
1. On page 23 following the second full paragraph, insert the following paragraph:
“Even though there was no evidence of defendant’s intent to commit larceny when he entered Hoppe’s home, burglary does not require evidence that defendant entered the house to commit larceny. There was substantial evidence of defendant’s intent to stalk the victim, a felony included in the definition of burglary, as set forth in paragraph D of section 3 of the opinion entitled ‘Sufficiency of Evidence of Burglary.’”
2. On page 26 following the first full paragraph, insert the following new paragraphs:
“E. The Trial Court Did Not Violate Cunningham
“Defendant contends that the trial court erred when it imposed an upper term sentence in violation of Cunningham, supra, 127 S.Ct. 856, because it did not rely upon facts determined by the jury. The People contend that any violation of the Cunningham sentencing requirements have been waived by defendant’s failure to object on federal constitutional grounds. In addition, the People assert that a defendant has no right to a jury trial where the trial court’s sentence is based upon the defendant’s prior convictions. (Cunningham, supra, at pp. 864, 868.) The California Rules of Court in rules 4.420 and 4.421 authorize the sentencing judge to select an upper term where justified by circumstances in aggravation. Rule 4.421(b)(2) expressly provides that in imposing a sentence of imprisonment the court may consider defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings.
“Defendant denies the significance of the defendant’s prior convictions and argues that Cunningham requires a jury finding on those convictions. Neither Cunningham nor Apprendi v. New Jersey (2000) 530 U.S. 466 requires a jury finding. In Cunningham, the trial court at page 864 expressly stated that ‘(o)ther than a prior conviction, see Almendarez-Torres v. United States, 523 U.S. 224, 239-247 . . . we held in Apprendi, “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.”’ In People v. Black (2007) 41 Cal.4th 799, 818, the California Supreme Court observed ‘[m]oreover, a second aggravating circumstance—defendant’s criminal history—also rendered defendant eligible for the upper term sentence.’
“The trial judge decision in this case did not violate either Cunningham or Black when it imposed the upper term sentence.”
Except for this modification, the opinion remains unchanged. This modification does not effect a change in the judgment
We concur: Richli, Acting P. J., Miller, J.