Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CM026743
ROBIE, J.
Defendant was charged with two counts of identification theft after opening checking accounts at two different banks using forged checks. The information also alleged a prior strike conviction and three prior prison terms within five years. Defendant pled no contest to one count of identity theft and admitted the prior strike conviction in exchange for dismissal of the remaining charges and special allegations.
Defendant was sentenced to the upper term of six years and ordered to pay various fines and fees. Having belatedly obtained a certificate of probable cause, defendant appeals his sentence.
Defendant claims the trial court violated his federal constitutional rights to a jury trial and due process when it sentenced him to the upper term of six years in violation of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403], and Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856]. We disagree.
At sentencing, the trial court imposed the upper term based on findings that the crime was premeditated, defendant’s prior convictions are numerous (four felony convictions as an adult), defendant served previous prison terms, defendant was on parole at the time these crimes were committed, and defendant’s prior performance on probation or parole had been unsatisfactory.
Applying Cunningham, our Supreme Court recently held in People v. Black (2007) 41 Cal.4th 799, 816 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.”
Here, the record discloses a legally sufficient aggravating circumstance -- defendant’s record of prior convictions which the trial judge found were numerous. (See People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [three prior convictions deemed numerous]; see also People v. Black, supra, 41 Cal.4th at p. 818 [citing Searle with approval on this point and concluding five prior convictions were numerous]; Cal. Rules of Court, rule 4.421(b)(2) [defining an aggravating circumstance as including the circumstance of numerous prior convictions].) Consequently, under Black, the trial judge’s imposition of the upper term did not violate defendant’s constitutional right to jury trial (and related due process rights) under Apprendi/Blakely/Cunningham.
As defendant acknowledges in his opening brief, although he may disagree with the reasoning of Black, we are bound by it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P.J., NICHOLSON, J.