Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM026407
RAYE, J.Defendant Donald Ray Nelson entered a negotiated plea of no contest to driving under the influence of alcohol or drugs, a felony (Veh. Code, § 23152, subd. (a)), and admitted three prior drunk driving convictions (1998, 2003, 2004) in exchange for dismissal of the remaining count (driving under the influence with blood alcohol content of .08 percent or more) and allegation (prior prison term for 2004 conviction of violating Pen. Code, § 273.5, subd. (a)).
Sentenced to the upper term of three years, defendant appeals. Defendant did not obtain a certificate of probable cause. (Pen. Code, § 1237.5.) He contends the trial court’s imposition of the upper term contravenes Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We disagree and will affirm the judgment.
FACTS
About 7:45 p.m. on February 4, 2007, defendant was stopped for swerving while driving down the road. He had almost collided with the deputy sheriff who stopped him. Defendant’s eyes were watery and bloodshot, and his speech was slow. Defendant failed a series of field sobriety tests, and his breath sample measured .12 percent blood alcohol content. Defendant was on parole and had a suspended driver’s license.
DISCUSSION
In entering his plea, defendant stipulated that the court could consider his prior criminal history and the facts underlying the offense, including the facts underlying the dismissed count.
The probation report recounted that a condition of defendant’s parole required him to abstain from the consumption of alcohol. His record reflected that the current offense was his fourth drunk driving conviction and his sixth felony conviction. He also had four other prior misdemeanor convictions. He had been to state prison four times and violated probation and parole a number of times.
When defendant was sentenced, defense counsel asked the court to “enunciate the basis upon which [the court] arrived at [its intended ruling of a three-year term] in light of Cunningham and SB-40 so the record can be clear.” The court found that “the crime involved threat of great bod[il]y injury, the defendant’s priors are numerous, he has served prior prison terms, he was on parole at the time of the crime, and his prior performance on probation and parole [was] unsatisfactory.” The court found no factors in mitigation.
Defendant contends the foregoing factors do not fall within the “prior conviction” exception to his right to a jury trial and proof beyond a reasonable doubt. He claims he did not admit any of the factors and a jury did not find any to be true.
The Attorney General asserts that the claim has been forfeited, noting that defendant entered his plea and was sentenced after Cunningham was decided.
Defense counsel raised Cunningham at sentencing but did not object to the trial court’s statement of reasons. We will assume, without deciding, that the issue is preserved. On the merits, the trial court relied on factors making defendant eligible for the upper term, that is, defendant’s criminal history. (People v. Black (2007) 41 Cal.4th 799, 812, 818-820.) The court cited defendant’s numerous prior convictions, his prior prison terms, the fact he was on parole at the time of the offense, and his unsatisfactory performance on probation and parole, all supported by the record. The Cunningham exception encompasses “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.” (Id. at p. 819.)
Further, any Cunningham error was harmless beyond a reasonable doubt. Defendant admitted three prior convictions for driving under the influence and he had numerous other prior convictions, both felony and misdemeanor. “[T]he jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury . . . .” (People v. Sandoval (2007) 41 Cal.4th 825, 839.)
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P.J., DAVIS, J.