Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM019984
OPINION ON REMAND
BUTZ, J.
In return for dismissal of additional charges, defendant Jacqueline Ann Marble pleaded no contest to one count of assault with a deadly weapon on a person known, or who reasonably should be known, to be performing duties as a peace officer. (Pen. Code, § 245, subd. (c).) Sentenced to five years in state prison, she appeals, contending the trial court erred under Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham) in imposing the upper term for the offense based upon facts not determined by a jury. The appeal is before us after remand from the California Supreme Court’s decision in People v. French (2008) 43 Cal.4th 36, 41, holding that a Cunningham claim is not a challenge to a negotiated sentence imposed as a part of a plea bargain and hence not a challenge to the plea, which does not require a certificate of probable cause under section 1237.5.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Under a plea bargain defendant pleaded no contest to the assault charge on December 9, 2003. The trial court imposed the upper term for the offense, five years’ imprisonment, as recommended by the probation department. The court gave three reasons for that sentencing choice: (1) defendant’s prior convictions are numerous and of increasing seriousness, (2) she has served a prior prison term, and (3) her prior performance on probation was unsatisfactory.
In 2007, defendant first raised the constitutional violation based on the newly decided opinion in Cunningham, supra, 549 U.S. 270 [166 L.Ed.2d 856]. This court disagreed with defendant’s position and on November 16, 2007, issued an opinion dismissing the appeal for defendant’s failure to obtain a certificate of probable cause. (§ 1237.5.) Our state Supreme Court granted defendant’s petition for review in January 2008 and ultimately retransferred the cause to this court with directions to vacate our decision and to reconsider the cause in light of People v. French, supra,43 Cal.4th 36.
DISCUSSION
Defendant contends that the trial court erred in imposing the upper term based on aggravating factors on which there was no jury trial. She argues that this violated the federal jury trial right as explained in Cunningham. The argument is unpersuasive and the contention of error has no merit.
In People v. Black (2007) 41 Cal.4th 799, 816, the Supreme Court held: “[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.” It suffices to say the aggravation finding that defendant had served a prior prison term (Cal. Rules of Court, rule 4.421(b)(3)) is justified based upon defendant’s record of prior convictions. And the fact of a prior conviction is not required to be determined by a jury. (People v. Towne (2008) 44 Cal.4th 63, ___ [2008 WL 2521718, p. *7].) Thus, imposition of the upper term did not infringe upon defendant’s constitutional right to jury trial.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P.J., CANTIL-SAKAUYE, J.