Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR169402
Parrilli, Acting P. J.
Respondent’s petition for rehearing is granted and the opinion filed on July 18, 2007, is vacated and replaced by this opinion. This case was remanded to us by the United States Supreme Court after its decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). In light of our Supreme Court’s recent decision in People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ [2007 WL 2050875, 2007 Cal. Lexis 7604] (Black II), we now affirm the judgment.
PROCEDURAL BACKGROUND
In August 2005, we issued an opinion affirming appellant’s convictions for battery with injury against a peace officer (§ 243, subd.(c)(2)) and resisting or deterring an officer with force or violence (§ 69). (See People v. King (Aug. 23, 2005) 2005 WL 2010190, 2005 Cal.App. Unpub. Lexis 7586.) Relying on People v. Black (2005) 35 Cal.4th 1238, certiorari granted and judgment vacated by Black v. California (2007) 127 S.Ct. 1210.) (Black I), we rejected appellant’s argument that his right to jury trial was violated by the court’s finding of aggravating factors at sentencing.
On February 20, 2007, the United States Supreme Court issued an order in this case granting certiorari, vacating the judgment, and remanding to this court for further consideration in light of Cunningham, supra, 127 S.Ct. 856. Pursuant to its mandate, we have recalled the remittitur. We have reexamined our initial opinion in this case, which we incorporate by reference, and have received supplemental briefing from the parties.
In his supplemental brief, appellant reasserts various contentions he states he argued in his opening and reply brief. We reject those claims for the reasons articulated in our earlier unpublished opinion. (See People v. King, supra, WL 2010190.)
THE TRIAL COURT’S SENTENCING DECISION
The trial court sentenced appellant to the upper term of three years on the section 243 conviction for battery with injury on a peace officer, and imposed a concurrent term of one year on the section 69 conviction. The court also imposed a one-year sentence enhancement pursuant to section 667.5, subdivision (b). The trial court imposed the upper term after it found the following factors in aggravation: (1) the defendant engaged in violent conduct indicating a serious danger to the community; (2) defendant’s prior convictions are increasing in seriousness; (3) defendant was on probation at the time he committed this crime; and, (4) defendant’s prior performance on probation was unsatisfactory.
ANALYSIS
In Cunningham, the high court concluded California’s determinate sentencing law (“DSL”) violates the Sixth Amendment because it “allocates to judges sole authority to find facts permitting the imposition of an upper term sentence[.]” (Cunningham, supra, 127 S.Ct. at p. 871.) Relying on Cunningham, appellant contends the trial court’s imposition of the upper term in the present case violated his Sixth-Amendment right to a jury trial. This contention fails under Black II.
In Black II, our Supreme Court addressed the same issue. (See Black II, supra, at p. *1 [considering whether imposition of the upper term violated appellant’s right to a jury trial].) The Court noted that in Blakely, supra, the high court “explicitly recognized the legitimate role of ‘judicial factfinding’ in indeterminate sentencing, in which the judge may ‘implicitly rule on those facts he deems important to the exercise of his sentencing discretion.’ (Blakely, supra, 542 U.S. at p. 309.)” (Black II, supra, at p. *7.) Accordingly, the Court concluded that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Ibid.) The Court added that “[t]he facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense ‘do not pertain to whether the defendant has a legal right to a lesser sentence—and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.’ (Citation.)” (Ibid.) Noting “the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term” under California’s DSL, the Court therefore concluded that “if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum’ ” for Sixth Amendment purposes. (Ibid.)
Applying these conclusions to the facts before it, the Black II Court noted the high court “ ‘consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction[, ] [and that] ‘recidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender's sentence.’ ” (Black II, supra, at p. *10 [citations omitted].) On that basis, the Court reasoned defendant’s criminal history alone rendered him eligible for the upper term sentence. (Ibid.) In sum, the Court concluded “defendant’s criminal history and the jury’s finding that the offense involved the use of force or violence establish two aggravating circumstances that independently satisfy Sixth Amendment requirements and render him eligible for the upper term. Therefore, he was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence for the offense of continuous sexual abuse of a child.” (Black II, supra, at p. *12.) Similarly here, the trial court identified three recidivist factors—defendant’s prior convictions are increasing in seriousness; he was on probation at the time he committed this crime; and, his prior performance on probation was unsatisfactory—which taken together certainly rendered him eligible for the upper term. (Id. at p. *11 [consistent with Sixth Amendment, trial court may determine “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions”].) Hence, appellant suffered no Sixth Amendment violation by the trial court’s exercise of its discretion in selecting the upper term in his case. (Ibid.)
DISPOSITION
The judgment is affirmed.
We concur: Pollak, J., Siggins, J.