Opinion
NOT TO BE PUBLISHED
Superior Court County of Los Angeles, Super. Ct. No. PA051561, Burt Pines, Judge
John D. O'Loughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Bill Lockyer, Attorneys General, Dane R. Gillette, Robert R. Anderson, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, Supervising Deputy Attorney General, Michael R. Johnsen, Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
GILBERT, P.J.
Here we hold that under People v. Black (2007) 41 Cal.4th 799, Manuel Zamudio was not entitled to a jury trial on the factors used to impose the upper term. We affirm.
FACTS
A jury found Zamudio guilty of assault by means likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).) Zamudio waived his right to a jury trial on prior conviction and prior prison term allegations. The trial court found Zamudio had one prior serious or violent felony conviction within the meaning of the three strikes law (id., §§ 667, subds. (b)-(i); 1170.12, subds (a)-(d)) and had served four prior prison terms (id., § 667.5, subd. (b)).
The trial court sentenced Zamudio to the upper term of four years for the assault, doubled the term under the three strikes law, and added a consecutive one year for each of the four prior prison terms, for a total of 12 years.
In imposing the upper term for the assault, the trial court considered the following circumstances in aggravation: that Zamudio was on parole when he committed the crime; that his prior performance on probation or parole was unsatisfactory; that his prior convictions as an adult are numerous and of increasing seriousness; and that he has engaged in violent conduct that indicates he is a serious danger to society. The trial court found no circumstances in mitigation.
DISCUSSION
I
Zamudio contends the trial court denied him his Sixth Amendment right to a jury trial on the findings used to impose the upper term for assault.
Under the California determinate sentencing law as it existed at the time Zamudio was sentenced, the trial court could impose the upper term only upon its finding of one or more aggravating factors. (Former Pen. Code, § 1170, subd. (b).) Recently, the United States Supreme Court held such a sentencing scheme violates the Sixth Amendment right to a jury trial to the extent it assigns to the trial court the authority to find facts that expose the defendant to the upper term. (Cunningham v. California (2007) __ U.S. __ [166 L.Ed.2d 856].)
The right to a jury trial, however, does not apply to the fact of a prior conviction. (People v. Black, supra, 41 Cal.4th 799, 818.) This exception also applies to related issues that may be determined by examining the records of prior convictions, such as whether the offenses are numerous or of increasing seriousness. (Id. at pp. 819-820.) As long as a single aggravating factor that renders the defendant eligible for the upper term has been properly established, any additional fact finding engaged in by the trial court in selecting the appropriate sentence does not violate the defendant's right to a jury trial. (Id. at p. 813.)
Here the trial court found Zamudio's prior convictions are numerous and of increasing seriousness. That factor does not require a jury determination. Because one factor that renders Zamudio eligible for the upper term has been properly established, the trial court's selection of the upper term does not violate Zamudio's right to a jury trial.
The judgment is affirmed.
We concur: YEGAN, J., COFFEE, J.