Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF06563
ROBIE, J.
This case comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436. Defendant filed a supplemental brief, claiming the trial court’s imposition of the upper term sentence violated the rule set forth in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We address this issue, in addition to undertaking a review of the record as required by Wende, and affirm the judgment.
On August 16, 2006, defendant and his girlfriend took $36.73 worth of products from the Holiday Market. When contacted by law enforcement, defendant gave the officer a false name.
On August 17, 2006, defendant and his girlfriend were found in possession of a neighbor’s washing machine, which they had hooked up to the neighbor’s water supply. The owner did not give them permission to use her residence or take any property.
Defendant pled guilty to second degree burglary of the Holiday Market. In exchange for his plea, the remaining counts were dismissed. The trial court sentenced defendant to the upper term of three years, selecting the upper term based on defendant’s numerous prior convictions and prison commitments.
Defendant contends that imposition of the upper term for his conviction violated the Sixth Amendment to the United States Constitution as interpreted by Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), Blakely, supra, 542 U.S. at p. 296 [159 L.Ed.2d at p. 403], and Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 856]. We disagree.
In Apprendi, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) The statutory maximum is the maximum sentence a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant. (Blakely, supra, 542 U.S. at p. 303 [159 L.Ed.2d at p. 413].) Therefore, when a court’s authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Id., at pp. 303-304 [159 L.Ed.2d at pp. 413-414].)
In Cunningham, the United States Supreme Court held that the trial court is precluded from finding facts or circumstances in aggravation that expose a defendant to an upper term sentence. However, the trial court may increase the penalty for a crime based upon the defendant’s prior convictions without submitting that question to a jury. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864]; see Almendarez-Torres v. United States (1998) 523 U.S. 224, 243 [140 L.Ed.2d 350, 368]; Blakely, supra, 542 U.S. at p. 301 [159 L.Ed.2d at p. 412]; Apprendi, supra, 530 U.S. at pp. 488-490 [147 L.Ed.2d at pp. 453-455].)
Since Cunningham, our Supreme Court has revisited this issue and held that “imposition 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.” (People v. Black (2007) 41 Cal.4th 799, 816 (Black).) Under Black, the prior conviction exception includes not only the fact that a prior conviction occurred, but also the number and relative seriousness of the convictions. (Id. at pp. 818-820.)
In this case, the trial court sentenced defendant to the upper term of three years, based on his “prior felony convictions and prison commitments.” The record reflects defendant had numerous misdemeanor convictions, and two state felony convictions, each resulting in corresponding prison commitments. The record also reflects that defendant had two federal felony convictions which resulted in prison commitments, although defendant maintained he did not sustain those federal convictions.
Contrary to defendant’s contention, the trial court properly relied on his record of prior convictions when it imposed the upper term. (Black, supra, 41 Cal.4th at p. 820.) Therefore, defendant’s sentence did not violate his Sixth Amendment rights under Blakely and Cunningham.
Defendant acknowledges that we are bound by the California Supreme Court’s holding in Black, supra, 41 Cal.4th 799, but raises the issue to preserve it for federal court review.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P.J., NICHOLSON, J.