Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct. No. RIF130659. E. Michael Kaiser, Judge.
Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Robert M. Foster, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKINSTER, J.
Defendant Randall Louis Realsen appeals the trial court’s imposition of an aggravated prison term of three years for his felony burglary conviction. Relying on the Supreme Court’s recent decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), defendant argues imposition of the aggravated term violates his constitutional rights because it is based on facts not found true by a jury.
FACTUAL AND PROCEDURAL HISTORY
Defendant was charged and convicted by a jury of second degree burglary in violation of Penal Code section 459. The information also alleged five prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). These included convictions for second degree burglary in 2005, grand theft of over $400 in 1998, and possession of a controlled substance on three separate instances in 1993, 1996 and 2002. Following the jury’s verdict on the burglary charge, the prior conviction allegations were tried separately before the trial court. The court found all of the allegations to be true.
Relying on defendant’s “extensive criminal history and numerous prior convictions,” the court imposed the upper term of three years in state prison for the burglary conviction. Pursuant to Penal Code section 667.5, subdivision (b), the court also imposed a one-year enhancement for the first prior prison term alleged in the information for the second degree burglary conviction in 2005. Defendant is therefore serving a total prison term of four years.
Defendant contends the trial court also relied on the manner in which the current offense was committed to impose an aggravated term because the circumstances of the burglary were indicative of planning, sophistication, and professionalism. However, a transcript of defendant’s sentencing hearing shows that the circumstances of the current offense were only considered by the trial court to determine defendant was not eligible for probation.
Despite the prosecutor’s objection, the court dismissed the four remaining prior prison terms allegations. To explain its reasons for dismissing these four prior convictions, the trial court stated it had considered defendant’s age, as well as its use of the prior convictions to impose the upper term.
DISCUSSION
Defendant argues the three-year aggravated term imposed against him for the second degree burglary conviction should be reduced to the middle term, because the trial court relied not only on the fact of his prior convictions, but also on its own additional factual finding that these convictions were “numerous.” According to defendant, reliance on this finding is “inherently a subjective decision,” and thus constitutionally inappropriate with a jury determination on the issue. We disagree.
In Cunningham, the Supreme Court concluded California’s determinate sentencing law violates a criminal defendant’s right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the extent it allows trial courts to impose an aggravated upper prison term “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, supra, 127 S.Ct. at p. 860, italics added.)
Here, the transcript of defendant’s sentencing hearing confirms the trial court’s reliance on defendant’s prior convictions in imposing the upper term. As a result, it is clear that the trial court relied on an aggravating factor which falls within the “prior conviction” exception to the constitutional rule set forth by the Supreme Court in Cunningham. (People v. Black (2007) 41 Cal.4th 799, 814.) Under these circumstances, a defendant is not “legally entitled” to the middle term sentence, and the upper term is therefore the “statutory maximum” that a trial court may impose without violating constitutional requirements. (Id. at. p. 813) Nor is it constitutionally significant that in imposing the upper term the trial court also relied on its own conclusion that defendant’s prior convictions were numerous. (Id. at pp. 814-815.) In short, the trial court in this case did not violate defendant’s constitutional right to a jury trial by imposing the upper term, so it is unnecessary for us to modify defendant’s sentence or to remand the matter for resentencing.
Because we conclude there was no constitutional violation, we need not address defendant’s argument that the trial court’s use of his prior convictions to impose the aggravated term was prejudicial and not subject to harmless error analysis. It is also unnecessary for us to address defendant’s argument that recent amendments to California’s statutory sentencing scheme cannot be applied on remand because it would be unconstitutional under the due process and ex post facto clauses.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P. J., RICHLI, J.