Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 01NF2330, Gregg L. Prickett, Judge.
Terrence Verson Scott, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
In an earlier opinion (People v. Stubbs (Sept. 15, 2005, G032482) [nonpub. opn.]), we affirmed Tony Stubbs’s convictions on two counts of carjacking (Pen. Code, § 215, subd. (a)), but accepted the Attorney General’s concession and reversed a finding that defendant suffered a “strike” under the Three Strikes law for a prior juvenile delinquency adjudication for carjacking in 1996. The prosecutor elected not to retry defendant on the prior conviction allegation, and the trial court resentenced defendant on January 6, 2006. As it had at the original sentencing, the court imposed the upper nine-year term for carjacking on count one, citing several aggravating factors relating to defendant and the crime. (Cal. Rules of Court, rule 4.421(b)(1) [defendant engaged in violent conduct indicating a serious danger to society]; rule 4.421(b)(2) [defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness]; rule 4.421(a)(1) [crime involved threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness, or callousness].) The court added a consecutive 20-month term for count 2.
Defendant argues the trial court erred by imposing an upper term of imprisonment on count one in violation of Blakely v. Washington (2004) 542 U.S. 296. (See also United States v. Booker (2005) 543 U.S. 220; Apprendi v. New Jersey (2000) 530 U.S. 466.) The United States Supreme Court has held California’s determinate sentencing law violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial to the extent it permits a trial court to impose an upper term based on facts found by the court rather than by a jury beyond a reasonable doubt. (Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).)
The California Supreme Court has recently decided that 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.” (People v. Black (July 19, 2007, S126182) ___ Cal.4th ___.) The court specifically held a defendant’s criminal history renders him eligible for the upper term sentence, and that the trial court rather than a jury may properly decide whether a defendant’s convictions are numerous or increasingly serious. (Id. at p. ___; People v. McGee (2006) 38 Cal.4th 682.)
Defendant did not object in the trial court, and does not argue here, that the trial court’s finding concerning his criminal history was factually inadequate. Consequently, the trial court’s imposition of the upper term for count 1 did not violate Cunningham.
Judgment affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.