Opinion
NOT TO BE PUBLISHED
RAYE, J.
Defendant Barry Gene Williams entered a negotiated no contest plea to transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)). He also entered no contest pleas to misdemeanor possession of a smoking device (Health & Saf. Code, § 11364) and driving on a suspended license (Veh. Code, § 14601.1, subd. (a)), and admitted he had served a prior prison term.
He also entered no contest pleas to possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)), which conviction was subsequently stayed as a lesser included offense of transportation, and transporting marijuana (Health & Saf. Code, § 11360, subd. (a)), which conviction was reduced to a misdemeanor (Health & Saf. Code, § 11360, subd. (b)).
Defendant was sentenced to a state prison term of five years (the upper term of four years, plus a one-year prior prison term enhancement).
Defendant contends the trial court violated his Sixth Amendment right to have a jury determine the facts upon which the court relied to sentence him to the aggravated term, citing Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). The contention fails for reasons that follow.
Applying the Sixth Amendment to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490.) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jury’s verdict or admitted by the defendant. Thus, when a sentencing 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.)
Accordingly, in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham), 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.” (Cunningham, at p. ___ [166 L.Ed.2d at p. 864], overruling on this point People v. Black (2005) 35 Cal.4th 1238, vacated in Black v. California (Feb. 20, 2007) ___ U.S. ___ [167 L.Ed.2d 36].)
As we have pointed out, an exception to this rule is that the trial court may increase the penalty for a crime based upon the defendant’s prior convictions, without having this aggravating factor submitted to the jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.) That is what occurred in this case. The court cited defendant’s prior criminal convictions -- “he has three prior felony convictions, two prior prison commits, and again, an extensive record with felonies” -- as the sole basis for imposing the upper term. Since defendant’s prior convictions were not subject to the rule of Apprendi and Blakely, and were legally sufficient to expose him to the upper term, there was no error.
DISPOSITION
The judgment is affirmed.
We concur:
SCOTLAND, P.J., DAVIS, J.