Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. KA076613, Robert M. Martinez, Judge.
Jeffrey Lewis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Margaret E. Maxwell and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Henry Guerra Majano, appeals from the judgment entered following his conviction, by jury trial, for vehicle theft with a prior (Veh. Code § 10851; Pen. Code § 666.5). Sentenced to state prison for four years, Majano claims there was sentencing error.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.
On October 2, 2006, Debra Sanchez parked her Honda Civic at Garey High School in Pomona. When she returned to retrieve her car, it was gone. Sanchez did not know Majano and had not given him permission to drive her car.
That afternoon, Public Safety Officer Jeffrey Parker saw Sanchez’s Honda in a parking lot at Mount San Antonio College in Walnut. Majano was sitting in the driver’s seat; another man was sitting in the front passenger seat. Parker got suspicious because Majano and his companion were both sitting rigidly and did not look in his direction, and because the Honda did not have a student parking permit. Parker called for backup. Majano drove the Honda out of the parking space and bumped into Parker’s truck. Majano and his companion were detained.
The Honda’s ignition system had been pulled away from the steering column and there was broken window glass on the driver’s seat. The engine was running without a key. A shaved key and a screwdriver were recovered from Majano.
A fingerprint examiner took Majano’s prints and compared them to exemplars included in Majano’s California Department of Corrections section 969 (b) prison packet. The examiner testified the prints matched.
Majano did not present any evidence.
CONTENTION
The trial court erred by sentencing Majano to an upper term.
DISCUSSION
Majano contends the trial court’s imposition of an upper term for his vehicle theft conviction violated Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856]. This claim is meritless.
Section 666.5 provides, in pertinent part, that anyone who has been convicted for felony vehicle taking “regardless of whether or not the person actually served a prior prison term” for that offense, and who is subsequently convicted of the same offense, “shall be punished by imprisonment in the state prison for two, three, or four years, or a fine . . ., or both the fine and the imprisonment.”
In Apprendi v. New Jersey (2000) 530 U.S. 466 147 L.Ed.2d 435, the Supreme Court held: “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.) In Blakely v. Washington (2004) 542 U.S. 296, 301159 L.Ed.2d 403, the court reiterated this rule and applied it to invalidate an enhanced sentence imposed under Washington’s determinate sentencing law, whose structure was somewhat akin to the triad structure of California’s Determinate Sentencing Law (DSL).
In People v. Black (2005) 35 Cal.4th 1238 (Black I), our Supreme Court held: “[T]he provisions of the California determinate sentence law simply authorize a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range. Therefore, the upper term is the ‘statutory maximum’ and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the principles set forth in Apprendi [and] Blakely . . . .” (Id. at p. 1254.)
However, Cunningham v. California, supra, 127 S.Ct. 856, overruled Black I, holding that the middle term under the DSL is “the relevant statutory maximum” (id. at p. 871) for Sixth Amendment purposes, and therefore, other than the fact of a prior conviction, “any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Id. at pp. 863-864.)
In People v. Black (2007) 41 Cal.4th 799 (Black II), our Supreme Court reconsidered Black I in light of Cunningham and held: “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial. (Id. at p. 812.) “[I]mposition 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.)
Here, in imposing the upper term, the trial court said it was relying on two factors: that Majano had been on parole when the crime was committed, and that he had served a prior prison term for a similar offense. Either factor was, by itself, sufficient to render Majano eligible for the upper term. (See Black II, supra, 41 Cal.4th at p. 818, 819 [“the right to a jury trial does not apply to the fact of a prior conviction,” an exception which “include[s] 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”]; People v. Velasquez (2007) 152 Cal.App.4th 1503, 1515 [trial court’s finding defendant had served prior prison term was directly related to defendant’s recidivism as that term has been construed by California appellate courts]; People v. Yim (2007) 152 Cal.App.4th 366, 370-371 [trial court’s finding defendant had been on parole when current offense committed related to defendant’s recidivism and was sufficient reason for imposing upper term].)
Currently pending before the California Supreme Court, in People v. Towne, review granted July 14, 2004, S125677, is the issue of whether a trial judge may sentence a defendant to an upper term based on any or all of the following aggravating factors, without submitting them to a jury: the defendant’s prior convictions as an adult are numerous and of increasing seriousness; the defendant has served a prior prison term; the defendant was on parole when the crime was committed; the defendant’s prior performance on probation or parole was unsatisfactory.
It was the jury that found Majano had suffered a prior prison term within the meaning of section 667.5. The trial court struck this enhancement finding in the interests of justice.
Majano argues Black II was wrongly decided. However, as he acknowledges, that ruling is binding upon this court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, J. KITCHING, J.