P. v. Villafan

Filed 9/19/07 P. v. Villafan CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Ruben Alvarez Villafan appeals from a judgment imposing the upper term of four years upon his guilty plea to the charge of transportation of methamphetamine in violation of Health and Safety Code section 11379, subdivision (a). A related charge was dismissed upon entry of his plea. In selecting the upper term, the trial court explained: The aggravated term is appropriate given his numerous criminal convictions. If I dont look at anything else, that makes it an aggravated term. The sole issue raised on appeal is that the sentence was imposed in violation of defendants constitutional rights under Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856] (Cunningham)and the prior cases on which that decision was based.

Defendants contention lacked merit even before the recent decision of our Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black II). An exception to the rule requiring jury determination or an admission to establish aggravating sentencing factors has long been made for recidivism factors, or the fact of a prior conviction. (Almendarez-Torres v. United States (1998) 523 U.S. 224.) Defendant argues that this exception may no longer be viable and at the very least is severely limited, and that it should be construed narrowly. However, in Black II our Supreme Court strongly reaffirmed the vitality of this exception: defendant's criminal history . . . also rendered defendant eligible for the upper term sentence. ([Pen. Code,]  1170, subd. (b).) The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. (Cunningham, supra, __ U.S. at p. __ [127 S.Ct. at p. 868]; Blakely, supra, 542 U.S. at p. 301; Apprendi v. New Jersey (2000)] 530 U.S. [466,] 490; Almendarez-Torres[, supra,] 523 U.S. 224.) [R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence. (Almendarez-Torres, supra, 523 U.S. at p. 243.) (Black II, supra, 41 Cal.4th at p. 818.) The trial courts use of this factor in the present case was well within the parameters of the exception.

The judgment is affirmed.

_________________________

Pollak, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Siggins, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.