P. v. Garza

Filed 12/10/08 P. v. Garza CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Edward P. Moffat II, Judge.

John Doyle, 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, Catherine Chatman and David A. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Appellant Sergio Aguilera Garza challenges his sentence on the ground that imposition of the upper term violated the principles set forth in Cunningham v. California (2007) 549 U.S. 270 (Cunningham) regarding the constitutional right to a jury trial. We reject appellants challenge and affirm the judgment.

BACKGROUND

Appellant pled no contest to possessing methamphetamine (Health & Saf. Code,  11377, subd. (a)) and admitted that he had a prior strike conviction (Pen. Code,  667, subds. (b)-(i)) pursuant to People v. West (1970) 3 Cal.3d 595. At the sentencing hearing on July 10, 2006, the trial court imposed the upper term of three years, which was doubled to six years pursuant to the three strikes law. The court then suspended execution of sentence and placed appellant on probation. No appeal was taken. Subsequently, a notice of violation of probation was filed. Appellant admitted the probation violation and the court committed him to the California Rehabilitation Center (CRC) for treatment. Thereafter, the CRC filed a letter notifying the court that appellant was statutorily ineligible for treatment. On September 10, 2007, the trial court terminated civil commitment proceedings and ordered the suspended six-year sentence into effect. Appellant filed a notice of appeal on September 19, 2007.

DISCUSSION

Appellant contends his 2006 upper term sentence for possession of methamphetamine violated his right to a jury trial as defined by the United States Supreme Court in Cunningham, supra, 549 U.S. 270. Assuming, without deciding, appellants failure to appeal from the courts imposition of sentence in July 2006 does not forfeit the issue, we disagree. The trial court imposed the upper term based on its finding that appellant had numerous prior convictions and numerous violations of parole and probation. A trial courts reliance on a defendants prior convictions and related issues that may be determined by examining the records of prior convictions does not violate Cunningham. (People v. Black (2007) 41 Cal.4th 799, 819 (Black II); cert. den. Black v. California (2008) __ U.S. __ [128 S.Ct. 1063].) Further, the existence of one such constitutionally permissible aggravating factor makes the defendant eligible for the upper term, and any additional judicial fact finding in choosing the appropriate sentence does not violate the right to a jury trial. (Black II, supra, 41 Cal.4th at p. 813.) Thus, the trial courts imposition of the upper term here did not violate Cunningham. Appellant recognizes that the trial courts reliance on his criminal history in imposing the upper term was supported by our Supreme Courts decisions in Black II, supra, 41 Cal.4th 799 and, more recently, in People v. Towne (2008) 44 Cal.4th 63 (Towne). Appellant contends Black II and Towne are inconsistent with federal constitutional law. However, as he acknowledges in his opening brief, this court is bound by the decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

DISPOSITION

The judgment is affirmed.

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^* Before Gomes, Acting P.J., Dawson, J. and Hill, J.