Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA090163, Larry S. Knupp, Judge.
Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Susan Sullivan Pithey, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
A jury convicted defendant and appellant Felix G. Martinez (defendant) of being a felon in possession of a firearm in violation of Penal Code section 12021, subdivision (a)(1). The trial court sentenced defendant to the upper term of three years. Defendant appealed, contending that the trial court’s imposition of the upper term sentence based on facts not found true beyond a reasonable doubt by a jury violates the Sixth and Fourteenth Amendments to the United States Constitution as set forth in Blakely v. Washington (2004) 542 U.S. 296, and that he did not forfeit that issue by failing to raise it in the trial court.
In our January 11, 2007, opinion, we held that defendant had not forfeited review of this issue. We also held that defendant’s constitutional claim failed because, under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, we were bound by the California Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I) which held that Blakely v. Washington does not invalidate upper term sentences under California’s determinate sentencing scheme. (People v. Black, supra, 35 Cal.4th at p. 1244.) We noted that the issue was then before the United States Supreme Court in Cunningham v. California (2007) 539 U.S. ___ [166 L.Ed.2d 856, 127 S.Ct. 856].
On January 22, 2007, the Supreme Court issued its opinion in Cunningham v. California, supra, 127 S.Ct. 856, overruling Black I. We granted defendant’s January 25, 2007, petition for rehearing and directed the parties to address various issues related to the Supreme Court’s Cunningham decision. Thereafter, on July 19, 2007, the California Supreme Court issued its opinions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825. We directed the parties to address the effect of Black II and Sandoval, if any, on this case.
Respondent did not submit a response.
In Black II, the Supreme Court stated, “[S]o 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. ‘Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments.’ (Harris v. United States (2002) 536 U.S. 545, 558 [153 L.Ed.2d 524, 122 S.Ct. 2406].) . . . [¶] Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728 [55 Cal.Rptr.2d 26, 919 P.2d 640].) Therefore, 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.’” (People v. Black, supra, 41 Cal.4th at p. 813.)
“The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.] ‘[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence. [Citation.]’” (People v. Black, supra, 41 Cal.4th at p. 818; People v. Sandoval, supra, 41 Cal.4th 825, 836-837 [“the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. [Citations.]”.) The fact finding on whether a defendant’s prior convictions are numerous or of increasing seriousness is made by the trial court and is not subject to the Sixth Amendment jury trial right. (People v. Black, supra, 41 Cal.4th at pp. 818-819.)
Here, the trial court sentenced defendant to the upper term, stating “In this matter, in balancing the circumstances in aggravation, circumstances in mitigation as to this defendant, the court finds that the crime did involve the threat of great bodily harm concerning the nature of the weapon. [¶] Defendant has prior convictions which are of increasing seriousness. I note he has a prior weapon conviction. He has served a prior prison term. His prior performance on probation or parole is unsatisfactory. I find no circumstance in mitigation. The court imposes the high-term of three years state prison.”
Defendant’s prior convictions made him eligible for the upper term. (People v. Black, supra, 41 Cal.4th at p. 818; People v. Sandoval, supra, 41 Cal.4th 825, 836-837.) Once defendant was eligible for the upper term, the trial court was entitled to consider all of the factors it relied on in sentencing defendant to the upper term. (People v. Black, supra, 41 Cal.4th at p. 813.) Defendant contends that Black II was wrongly decided. But, as defendant acknowledges, we are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.