Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF104189A
CANTIL-SAKAUYE, J.
Defendant appeals from an upper term three-year sentence after he was convicted by jury of felony evading a police officer (Veh. Code, § 2800.2) and misdemeanor hit and run causing damage (Veh. Code, § 20002). He contends imposing the upper term based on his prior record without submitting that fact to the jury violated his rights under the Sixth and Fourteenth Amendments. He further contends the trial court abused its discretion in imposing the upper term without considering that his prior convictions were drug related and reflected addiction rather than criminality. We find defendant’s prior record, part of which he admitted at trial, amply supports the upper term and affirm.
FACTS
Nadeem Khan managed a family-owned business, Alfalfa’s Pizza. In April 2007, he left work early to give a ride to his friend Martin Salas who was doing a landscaping job for him. As Khan was buckling his young son into his Yukon Denali SUV, three armed men approached. The men robbed Khan and Salas of their wallets; they also took Khan’s cell phone, $500-600 in cash, and his watch. The robbers took Khan’s son out of the SUV. One man took the keys to the SUV and drove off; the other two walked away.
About two minutes after the SUV left, Khan called 911. Deputy Kahekili Seto responded. While taking a statement, he heard a radio report that another officer had seen the SUV.
Deputy Robert North spotted the SUV shortly after he heard a BOLO (be on the lookout) report. He pulled behind the SUV and confirmed the license plate number with dispatch. The driver slowed down and started to pull over, but then pulled back into the traffic lane and sped off. North gave chase with his lights and siren activated.
The SUV sped through a residential neighborhood at 55 mph, running both a stop sign and red light. The driver lost control, hit a stop sign, and crashed through a wrought iron fence. The driver, defendant, took off on foot and was captured at the side yard laundry room of a residence.
At a field show up, Khan and Salas identified defendant as one of the robbers. Khan was unable to identify him at trial. The police did not find any of the stolen property or a gun.
Defendant was charged with two counts of robbery, carjacking, evading a police officer, and hit and run with damage.
At trial, defendant admitted the last two charges, but denied the robbery and carjacking. He claimed he was at the Stockton City Motel that night, selling drugs. He exchanged three or four rocks of cocaine for use of the SUV; a type of transaction he had done over a hundred times in the past. Defendant admitted he had been convicted of possession of rock cocaine for sale with possession of a firearm in 1995.
The jury acquitted defendant of robbery and carjacking, but found him guilty of felony evading and hit and run with damage. The trial court denied probation, finding defendant would not be successful based on his record. In addition to the drug and firearm conviction defendant admitted, the probation report showed he had three other drug-related felonies and two misdemeanors. He was on probation for a possession charge.
The court sentenced defendant to the upper term of three years citing his criminal record and to a concurrent 180-day sentence on the misdemeanor hit and run. Defendant admitted a violation of probation and was sentenced to a 16-month concurrent state prison sentence.
In selecting the upper term, the court also noted that defendant was not charged with receiving stolen property and no enhancements for prior prison terms were alleged and defendant could have been convicted of both.
DISCUSSION
Defendant contends the trial court’s reliance on his criminal record to support the upper term sentence violated his constitutional right to a jury trial because this factor was not found true by a jury. We disagree.
“The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. [Citations.]” (People v. Black (2007) 41 Cal.4th 799, 818.) “As this Court’s decisions instruct, the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).” (Cunningham v. California (2007) 549 U.S. 270, 274-275 [166 L.Ed.2d 856, 864-865].) “[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.” (Almendarez-Torres v. United States (1998) 523 U.S. 224, 243 [140 L.Ed.2d 350, 368].)
Defendant contends this rule is questionable because the prior conviction exception is based on Almendarez-Torres v. United States, supra, 523 U.S. 224 [140 L.Ed.2d 350], and a majority of the United States Supreme Court appears ready to overrule the case. Whatever the merits of defendant’s predictions about future actions of the United States Supreme Court, Almendarez-Torres and the line of cases cited above remain the law and we are bound to follow them. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Use of prior convictions as a sentencing factor need not be submitted to the jury.
Defendant contends the trial court abused its discretion in selecting the upper term based solely on his prior convictions. He notes his prior felonies are for drug offenses and argues that after Proposition 36, drug crimes are properly understood as reflecting addiction rather than criminality.
A trial court has broad discretion in sentencing a defendant. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120; People v. Lopez (1930) 210 Cal. 55, 57.) A single aggravating factor will support the decision to impose the upper term. (People v. Black, supra, 41 Cal.4th 799, 815.) That defendant’s prior convictions as an adult are numerous or of increasing seriousness is a factor in aggravation supporting an upper term sentence. (Cal. Rules of Court, rule 4.421(b)(2); People v. Wilson (2008) 164 Cal.App.4th 988, 992.) Defendant has four prior felony convictions; three convictions are “numerous” within the meaning of the rule. (People v. Searle (1989) 213 Cal.App.3d 1091, 1098.)
It is true that defendant’s prior convictions are largely drug related. He told the probation officer he would not have serious legal problems if he had never used drugs. Defendant has failed, however, to control his drug problem. He was attending Chemical Dependence Counseling Center as part of his Proposition 36 probation when he committed the instant offenses. Given his history, we find defendant’s situation similar to that in People v. Martinez (1999) 71 Cal.App.4th 1502, and are not persuaded that defendant’s drug problem should be viewed as a mitigating factor for sentencing. “Defendant portrays himself as a drug addict and a victim of drugs. The record demonstrates defendant has had lifelong problems with alcohol and drugs. However, drug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment. [Citations.] It is notable that defendant appears to have become seriously committed to seeking treatment after incarceration on charges carrying a life term. Defendant’s upbringing and learning disabilities are unfortunate, but the law still holds such an individual responsible for his or her behavior.” (Id. at p. 1511.)
Here, the trial court did not abuse its discretion in imposing the upper term based on defendant’s criminal record.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J., BUTZ, J.