Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. Nos. VCR 178564 & 178654
Siggins, J.
Defendant Robert Preston contends his nine-year sentence violates Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) because the trial court selected the aggravated term on the basis of facts that were neither admitted nor found true by a jury beyond a reasonable doubt. We find no error and affirm.
BACKGROUND
In case no. VCR178564, a jury convicted defendant of a felony violation of making or possessing a counterfeit die or apparatus. The trial court found five prior prison term allegations to be true. In case no. VCR178654, defendant pleaded no contest to petty theft with a prior conviction, and the prior prison term allegations were again found true.
The probation report listed three factors: the manner in which the crime was committed indicated planning and sophistication (Cal. Rules of Court, rule 4.421(a)(8); defendant had numerous prior convictions (Cal. Rules of Court, rule 4.421(b)(2); and his prior performance on probation and parole was unsatisfactory. (Cal. Rules of Court, rule 4.421(b)(5).)
The court denied probation and imposed the aggravated term, and said: “I agree with [defense counsel], there is clearly, or I think it quite likely, that substance abuse played a part in this. But the fact of the matter is, Mr. Preston has been given numerous opportunities, at every level throughout his adult life, to address these issues, on parole, at CRC, on probation initially. He has 19 prior felonies. He was on parole when this offense occurred.
“[Defense Counsel:] Actually, that’s not true, your Honor. He was not on probation or parole on these current offenses.
“The Court: You are correct, although he was not free for more than five years, but he had completed parole. As I recall, though, he was last violated back in parole to finish his term in 2003.
“And I also note, in reviewing the defendant’s history, that is interspersed throughout these 25 plus years that he’s been acquiring these felony convictions, there have been numerous initial grants of probation given to him, none of which was he ever successfully able to complete probation, and ultimately he was sentenced to the Department of Corrections. On at least one occasion he was placed at CRC. That didn’t work out either.
“He’s really not accepted any responsibility for these offenses. His explanation for this offense is really not believable; that he was just doing this for a friend. The Court doesn’t accept that.
“There is no question that the aggravated circumstances do outweigh the mitigated circumstances. Other than the fact that the defendant has had a decades long substance abuse problem, there really are no other factors in mitigation.
“He has, and ultimately I guess what the Court goes back to, is Mr. Preston does represent a danger to the community, and has for many, many years. And every time he’s released into the community, it’s only a short period of time before he’s out committing new felonies. Somebody was taking a loss for all this. This money was being passed on, or sold to other people that he was reproducing. Somebody is out a lot of money. [¶] I’m going to, therefore, impose the high term . . . .”
The court imposed a nine-year aggregate prison term in case no. VCR178564. In case no. VCR178654 defendant was sentenced to a concurrent aggravated three-year term. Defendant timely appealed.
DISCUSSION
In Cunningham, the high court concluded that California’s determinate sentencing law (DSL) violates the Sixth Amendment because it “allocates to judges sole authority to find facts permitting the imposition of an upper term sentence.” (Cunningham, supra, 127 S.Ct. at p. 876.) In reliance on Cunningham, defendant contends the trial court’s imposition of the upper term violated his rights under the Sixth and Fourteenth Amendments of the federal Constitution. His contention fails under People v. Black (2007) 41 Cal.4th 799 , and this court is bound by the holding in that case. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In Black our Supreme Court noted that in Blakely v. Washington (2004) 542 U.S. 296, the United States Supreme Court “explicitly recognized the legitimate role of ‘judicial factfinding’ in indeterminate sentencing, in which the judge may ‘implicitly rule on those facts he deems important to the exercise of his sentencing discretion.’ (Blakely, supra, 542 U.S. at p. 309.)” (People v. Black, supra,at pp. 812-813.) Accordingly, the court concluded that “so long as 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.” (Id. at p. 813.) “The facts upon which the trial court relies in exercising discretion to select among the terms available for a particular offense ‘do not pertain to whether the defendant has a legal right to a lesser sentence—and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.’ ” (Ibid.) Noting that “the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term” under California’s DSL, the court therefore concluded that “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’ ” for Sixth Amendment purposes. (Ibid.)
Applying its stated rule to the facts in Black, our Supreme Court noted the high court “consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction [,] [citations] [and that] ‘[r]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ ” (People v. Black, supra, 41 Cal.4th at p. 818.) On that basis, the court reasoned defendant’s criminal history alone rendered him eligible for the upper term sentence. (Ibid.)
The Black rule operates the same way in this case. Defendant’s prior convictions rendered him eligible for the aggravated term and imposition of that term did not violate his Sixth and Fourteenth Amendment rights. While defendant asserts that whether his 19 prior felony convictions are “numerous” must be decided by a jury because such a finding considers more than the bare fact of a conviction, Black expressly rejected that proposition. (People v. Black, supra, 41 Cal.4th at pp. 817-820 .) “The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ [citation] require consideration of only the number, dates, and offenses of the prior convictions alleged. . . . This type of determination is “quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ ” (Id. at pp. 819-820.) There was no sentencing error.
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P.J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.