Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Robert Perry, Judge. Los Angeles County Super. Ct. No. BA 236519
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Appellant Alton Lionell Sterling and a codefendant, Randell Nashan Yoakum, committed a series of armed robberies at small, family-operated stores. At that time, appellant was 19 years old, and Yoakum was 14 years old. During one of the robberies, they both shot at Jose Chitay, who died from a bullet fired by Sterling. They both confessed to a police detective following their arrests. They were tried jointly in the criminal court. Appellant was tried by a jury; Yoakum elected a court trial. They were convicted of most of the charges against them. We recently affirmed Yoakum’s conviction, in a nonpublished opinion, People v. Yoakum (July 31, 2007, B190194).
Appellant received an indeterminate sentence for the murder of Chitay (count 1), plus a determinate sentence for the other crimes. His issues on appeal relate solely to the determinate portion of his sentence. He contends: (1) The trial court improperly computed his sentence on the determinate counts. (2) Imposition of the upper term on count 17, and consecutive sentences on all of the determinate counts, violated the requirements of the Sixth and Fourteenth Amendments, as interpreted in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. ____ [127 S.Ct. 856] (Cunningham).
Respondent concedes the first issue. We reject the second issue, based on People v. Black (2007) 41 Cal.4th 799 (Black II). We order a modification in the abstract of judgment, and otherwise affirm.
DISCUSSION
On count 1, the murder of Chitay, appellant was convicted of first degree murder, a robbery-murder special circumstance, and multiple firearms allegations. He was sentenced to life imprisonment without the possibility of parole, plus 25 years to life for firearms discharge (Pen. Code, § 12022.53, subd. (d)). For the other charges, appellant was convicted of one count of possession of a firearm by a felon, one count of attempted robbery, one count of assault with a firearm, and nine counts of second degree robbery, plus numerous firearms allegations. For those counts, he received a determinate sentence of 53 years four months in prison.
Subsequent code references are to the Penal Code unless otherwise stated.
Appellant maintains, and respondent concedes, that there was an error in the trial court’s arithmetic. The court carefully set forth the sentence for each determinate count, but those sentences total 43 years four months, rather than 53 years four months. We order an amendment of the abstract of judgment, to reflect the correct total.
The only contested issue is imposition of the upper term on count 17, a robbery count that was selected as the base term. For that count, appellant received the upper term of five years, plus 20 years for firearms discharge (§ 12022.53, subd. (c).)
As a preliminary matter, we reject respondent’s argument that appellant forfeited his claim by failing to object. A Blakely objection would have been futile under Black II, supra, 41 Cal.4th at pages 810-812.
In imposing the upper term, the trial court stated: “I find no mitigating circumstances. [¶] As an aggravating circumstance, the defendant had prior convictions for carrying a concealed weapon and for robbery [and] by his actions in this case he has shown he is a clear danger to society. [¶] He and the codefendant committed several robberies of essentially defenseless operators of small businesses. And the court finds the aggravating circumstances outweigh the mitigating.” The court then made all of the determinate sentences consecutive to each other and consecutive to the sentence on count 1.
Appellant’s two prior convictions are discussed as follows in the probation report:
He pled nolo contendere on May 20, 2002, to carrying a concealed firearm (§ 12025). The sentence was summary probation, with 50 days in jail and credit for time served. The police found the gun in his pocket, when they stopped him for riding his bicycle without headlamps. He admitted to them that he belonged to the “Four Trey” street gang.
As to the second conviction, appellant was arrested on April 17, 2002, for robbery, but pled guilty on May 20, 2002, to possession of cocaine base for sale (Health & Saf. Code, § 11351.5). The facts were that the police located appellant at a park, two days after the victim complained that he had robbed her. There was cocaine and marijuana in appellant’s shoe. He admitted that he possessed the drugs for sale. On May 20, 2002, he pled guilty to the drug charge. He was sentenced to three years of formal probation, with 50 days in jail, and credit for time served. He committed the crimes in this case in August and September 2002, a few months after his convictions in the two other cases.
The second conviction is also mentioned in the statement in mitigation that appellant’s counsel filed for the sentencing hearing. That document again indicates that an arrest for robbery led to a conviction for violating Health and Safety Code section 11351.5.
While the trial court incorrectly stated that the second conviction was for robbery, rather than for selling drugs, it correctly recognized that there were two prior convictions, and used the convictions as a ground for imposition of the upper term. Its reliance on the convictions was sufficient to comply with the requirements of Blakely and Cunningham, as those requirements were interpreted by the California Supreme Court in Black II, supra, 41 Cal.4th 799. Under Black II, “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.” (Id. at p. 816.)
Appellant argues that his criminal record, as shown by the probation report and his statement in mitigation, is insufficient to justify the upper term, because the exception for prior convictions, derived from Almendarez-Torres v. United States (1998) 523 U.S. 224, does not permit findings that involve more than the “fact” of a prior conviction. That identical argument was rejected in Black II, supra, 41 Cal.4th at pages 819-820. In any event, the trial court here did not go beyond the facts of the prior convictions, as a ground for the upper term, and the existence of one of those convictions was discussed in appellant’s own pleading.
Finally, we reject appellant’s argument that imposition of consecutive sentences violated Blakely and Cunningham, as that argument was also rejected in Black II, supra, 41 Cal.4th at pages 820-823.
DISPOSITION
The clerk of the superior court shall prepare an amended abstract of judgment to reflect a total determinate sentence of 43 years four months, for counts 2, 9, 10, 11, 12, 13, 14, 17, 18 and 20. The amended abstract of judgment shall be forwarded to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: COOPER, P. J., RUBIN, J.