Opinion
NOT TO BE PUBLISHED
Sup.Ct. No. CRF05353
MORRISON, J.
Defendant, Alfonso Gomes Reynaldo, waived his right to a jury trial and was convicted by the trial court of second degree murder (Pen. Code, § 187, subd. (a)), and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)). The trial court then sentenced defendant to 15 years to life for the second degree murder conviction, and the upper term of four years for the assault conviction.
On appeal, defendant contends the imposition of the upper term on the assault conviction violates the Sixth Amendment to the United States Constitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi); 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 shall affirm the judgment.
DISCUSSION
“[I]mposition 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 II).) We must follow Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In deciding to impose the upper term on the assault conviction, the trial court relied on the victim’s vulnerability, defendant’s numerous prior convictions, and defendant’s prior performance on probation.
Defendant’s numerous prior convictions are “based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816; U.S. v. Fagans (2d Cir. 2005) 406 F.3d 138, 141-142; U.S. v. Corchado (10th Cir. 2005) 427 F.3d 815, 820.) The record shows that, excluding the present offense, defendant had at least six prior convictions as an adult. Defendant does not dispute the truth of any of these convictions. Based upon the undisputed record of defendant’s prior convictions, the trial court could properly conclude that defendant’s prior convictions were numerous.
Because this aggravating factor made defendant eligible for the upper term, the trial court did not violate defendant’s right to a jury trial in imposing the upper term. (Black II, supra, 41 Cal.4th 799, 816.)
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P.J., CANTIL-SAKAUYE, J.