P. v. Levine

Filed 11/20/07 P. v. Levine CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

----

Defendant Larry Joseph Levine pled no contest to one count of driving under the influence (DUI) with a blood alcohol concentration above 0.08 percent, causing injury, with priors (Veh. Code, 23566, subd. (a), 23153, subd. (b)) and admitted two prior convictions of the same offense (Veh. Code,  23566, subd. (b)). In return, the People agreed to dismiss the charge of driving under the influence, causing injury, with priors (Veh. Code, 23566, subd. (a), 23153, subd. (a)) and allegations of a prior strike as to both counts (Pen. Code,  667, subds. (b)-(i), 1170.12, subds. (a)-(d)).

The trial court sentenced defendant to four years in state prison, the upper term. The court found three aggravating factors, including numerous prior convictions, a prior prison term, and defendants on-probation status at the time of the offense; the court found no factors in mitigation.

Defendant appeals, contending that his sentence violated Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We shall affirm.

DISCUSSION

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] that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jurys verdict or admitted by defendant; thus, when a sentencing courts 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 v. Washington (2004) 542 U.S. 296, 302-305 [159 L.Ed.2d 403, 413-414] (Blakely).)

Accordingly, in Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856], the United States Supreme Court overruled the California Supreme Courts holding in People v. Black (2005) 35 Cal.4th 1238 that the judicial fact-finding necessary to impose an upper term does not violate Blakely. Yet Blakelys

proscription does not apply to the use of prior convictions to increase the penalty for a crime. (Cunningham, supra, 549 U.S. ___, ___ [166 L.Ed.2d at p. 869].) A single valid aggravating factor justifies an upper-term sentence. (People v. Osband (1996) 13 Cal.4th 622, 728.)

In People v. Black (2007) 41 Cal.4th 799, our Supreme Court held that, under Cunningham, when a trial court uses a valid sentencing factor to impose the upper term, it does not matter whether other factors the court relied on were improper. (Black, supra, 41 Cal.4th at p. 816.) Here, the first two factors the trial court used to impose the upper term -- defendants prior convictions and his prior prison term -- are clearly within the prior conviction exception to Cunningham. Therefore, whether or not the on-probation factor is also valid, the upper term was properly imposed.

We note an error in the abstract of judgment:  it misspells defendants last name as Levins. The trial court is directed to prepare a new abstract of judgment spelling defendants name correctly and to furnish a certified copy thereof to the Department of Corrections and Rehabilitation.

DISPOSITION

The judgment is affirmed. The matter is remanded to the trial court with directions to prepare a new abstract of judgment as indicated above and to furnish a certified copy of said abstract to the Department of Corrections and Rehabilitation.

SIMS , Acting P.J.

We concur:

HULL, J.

CANTIL-SAKAUYE , J.

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