Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. Super. Ct. No. 07CM0663B, James T. LaPorte, Judge.
Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and J. Robert Jibson, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Dawson, J., and Kane, J.
Appellant Felipe Lara Trelles pled guilty to possession of methamphetamine for purposes of sale (Health & Saf. Code, § 11378). The court imposed the upper term sentence of three years.
On appeal, appellant argues that under Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham), the imposition of the upper term violated appellant’s rights under the Sixth and Fourteenth Amendments to the United States Constitution. We will affirm.
DISCUSSION
In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court held, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) The high court reaffirmed this rule in Blakely v. Washington (2004) 542 U.S. 296, 301 and later in Cunningham. And in Cunningham the Supreme Court also held that the version of California’s determinate sentencing law then in effect violated the Sixth Amendment to the United States Constitution because it “authorizes the judge, not the jury, to find the facts permitting an upper term sentence ….” (Cunningham, supra, 549 U.S. __ [127 S.Ct. at p. 871].)
Subsequently, the California Supreme Court, in People v. Black (2007) 41 Cal.4th 799 (Black II), held that the prior conviction exception to the general rule requiring jury determination of aggravating sentencing factors (prior conviction exception) applies not only to the fact that a conviction occurred, but also to determinations that a defendant has suffered numerous prior convictions of increasing seriousness. (Id. at pp. 819-820.) The Black II court also held the existence of even one aggravating factor properly found in accordance with Cunningham and its antecedents is sufficient to make a defendant constitutionally eligible for an upper term sentence. (Black II, supra, 41 Cal.4th at p. 813.) In such a case, the court, in its exercise of sentencing discretion, may rely upon other factors not so determined. (Ibid.) The imposition of an upper term under those circumstances does not violate the defendant’s constitution right to trial by jury. (Id. at p. 816.)
Here, the court imposed the upper term based on its findings that appellant had (1) served a prison term, (2) committed the instant offense while on parole, and (3) suffered “numerous increasingly serious convictions,” and that these circumstances in aggravation outweighed any circumstances in mitigation. As indicated above, factor (3) comes within the prior conviction exception. (Black II, supra, 41 Cal.4th at pp. 819-820.) And there is no dispute that all the aggravating factors found by the court were supported by the record. Therefore, the imposition of the upper term did not violate appellant’s constitutional right to trial by jury. (Id. at pp. 813, 816.)
We offer no opinion as to whether either of the other circumstances in aggravation found by the court came within the prior conviction exception.
DISPOSITION
The judgment is affirmed.