P. v. Contreras
Filed 9/18/07 P. v. Contreras CA
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Yuba)
----
THE PEOPLE, Plaintiff and Respondent, v. RICARDO CONTRERAS, Defendant and Appellant. | C052658 (Super. Ct. No. CRF05841) |
Defendant Ricardo Contreras entered a straight up no contest plea to assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)) in exchange for dismissal of a remaining count. The trial court sentenced defendant to the upper term of four years in prison.
Defendants sole contention on appeal is that the trial courts imposition of the upper term contravenesBlakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). We shall affirm the judgment.
DISCUSSION
[I]mposition of the upper term does not infringe upon the defendants 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 defendants record of prior convictions. (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).)[1] Such is the case here.
As a preliminary matter, we note that defendant did not forfeit the issue by failing to raise it in the trial court. Defendant was sentenced on May 10, 2006. Before that, on June 20, 2005, our Supreme Court had decided People v. Black (2005) 35 Cal.4th 1238 (Black I), which held that a defendant does not have a right to have a jury determine aggravating factors used to impose the upper term. (Id. at p. 1244.) Black I was controlling law at the time of defendants sentencing. Defendant was not required to make a futile objection. It is pointless to require a defendant to ask a trial court to overrule a decision of the California Supreme Court. (Moradi-Shalal v. Firemans Fund Ins. Companies (1988) 46 Cal.3d 287, 292, fn. 1.)
Turning to the merits, in deciding to impose the upper term, the trial court relied on the following circumstances in aggravation: The offense involved the threat of great bodily injury. The defendant has engaged in violent conduct. His prior convictions are numerous and of increasing seriousness. He was on probation when the present offense was committed.
Defendants numerous prior convictions, which are of increasing seriousness, as well as his probationary status, are based upon the defendants record of prior convictions. (Black II, supra, 41 Cal.4th at p. 816; United States v. Fagans (2d Cir. 2005) 406 F.3d 138, 141-142; United States v. Corchado (10th Cir. 2005) 427 F.3d 815, 820.) A defendants constitutional right to a jury trial is not violated by the trial courts imposition of the upper term sentence where at least one aggravating circumstance was established by means that satisfy the requirements of the Sixth Amendment. (Black II, supra, 41 Cal.4th at p. 816.) Here, there were two such circumstances. Because either one of those circumstances rendered defendant eligible for the upper term sentence, his Sixth Amendment right to jury trial was not violated by imposition of the upper term. (Black II,at p. 820.)
DISPOSITION
The judgment is affirmed.
RAYE , J.
We concur:
SCOTLAND, P.J.
DAVIS , J.
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[1]Black II was decided after the briefing on appeal was completed.
