Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM026665
SCOTLAND, P.J.
Defendant John Randolph Shanks entered a negotiated plea of no contest to evading a pursuing peace officer, a felony (Veh. Code, § 2800.2), and driving under the influence of alcohol and/or drugs, a misdemeanor (Veh. Code, § 23152, subd. (a)). In exchange for the pleas and a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754), another count and a prior prison term allegation were dismissed.
The trial court sentenced defendant to the upper term of three years in state prison for evading a pursuing peace office and a concurrent term of six months in jail for driving under the influence of alcohol and/or drugs.
On appeal, defendant contends that the upper term sentence contravenes the holding of Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (hereafter Cunningham). Defendant acknowledges that we are bound by the California Supreme Court’s holding in People v. Black (2007) 41 Cal.4th 799 (hereafter Black II) but raises the issue to preserve it for federal court review.
We shall affirm the judgment.
DISCUSSION
Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (hereafter Apprendi) held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant; therefore, when a court’s authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].)
In Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864], the United States Supreme Court held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Ibid., overruling People v. Black (2005)35 Cal.4th 1238 on this point (hereafter Black I, which was vacated in Black v. California (2007) __ U.S. __ [167 L.Ed.2d 36]).)
Interpreting the decision in Cunningham, the California Supreme Court concluded that “imposition 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.” (Black II, supra, 41 Cal.4th at p. 816.) This is so, Black II explains, because “the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is ‘legally essential to the punishment’ (Blakely, supra, 542 U.S. at p. 313), that is, to ‘any fact that exposes a defendant to a greater potential sentence’ than is authorized by the jury’s verdict alone (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 863]).” (Black II, supra, 41 Cal.4th at p. 812.) “Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, 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.’” (Black II, supra, 41 Cal.4th at p. 813.)
Consequently, “[t]he issue to be determined in each case is whether the trial court’s factfinding increased the sentence that otherwise could have been imposed, not whether it raised the sentence above that which otherwise would have been imposed.” (Black II, supra, 41 Cal.4th at p. 815; orig. italics.) “As noted above, . . . the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence. [Citations.] The court’s factual findings regarding the existence of additional aggravating circumstances may increase the likelihood that it actually will impose the upper term sentence, but these findings do not themselves further raise the authorized sentence beyond the upper term. No matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly, judicial factfinding on those additional aggravating circumstances is not unconstitutional.” (Id. at p. 815.)
Here, in imposing the upper term, the trial court found in aggravation that (1) defendant’s prior convictions were numerous, (2) he had served prior prison terms, (3) he was on parole at the time of the offense, and (4) his prior performance on probation or parole was unsatisfactory. In mitigation, the court found that “defendant acknowledged guilt early on and that the defendant suffered from mental illness and drug and alcohol addiction in the past.”
In his opening brief, filed after Black II was decided, defendant acknowledged the Cunningham interpretation of the Sixth Amendment does not apply to prior convictions. He also conceded the second and third aggravating circumstances upon which the trial court relied “necessarily impl[y] the ‘fact of a prior conviction.’” Nevertheless, he argued the questions whether his prior convictions were “numerous” and whether his prior performance on probation or parole was “unsatisfactory” should have been submitted to a jury, and the failure to do so was reversible error.
In his reply brief, defendant recognizes that the reasoning of Black II defeats his claim of error. This is so because, in the words of his appellate counsel, “Black II squarely holds that the Cunningham jury trial right does not apply to the aggravating factor of ‘numerous’ or ‘increasingly serious’ prior convictions . . . . [¶] Further, Black II also holds that there is no Sixth Amendment violation so long as the sentencing court relied on at least one ‘valid’ aggravating factor,” like “the ‘prior conviction’ exception (such as numerous or increasingly serious priors in Black II).”
In sum, the aggravating circumstances that defendant had numerous prior convictions, had served prior prison terms, and was on parole when he committed the crime for which he received the upper term, separately and/or collectively exposed defendant to the upper term without need to obtain a jury verdict as to the existence of those circumstances. (Black II, supra, 41 Cal.4th at p. 819.) Thus, the Sixth Amendment “permit[ted] 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.)
In any event, we are satisfied beyond a reasonable doubt that the trial court would have imposed the upper term based solely on the aggravating fact that defendant had numerous prior convictions. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]; People v. Sandoval (2007) 41 Cal.4th 825, 839.)
DISPOSITION
The judgment is affirmed.
We concur: SIMS, J., MORRISON, J.