P. v. Reynaldo
Filed 4/3/08 P. v. Reynaldo 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Yuba)
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THE PEOPLE, Plaintiff and Respondent, v. ALFONSO GOMES REYNALDO, Defendant and Appellant. | C054626 (Sup.Ct. No. CRF05353) |
Defendant, Alfonso Gomes Reynaldo, waived his right to a jury trial and was convicted by the trial court of second degree murder (Pen. Code, 187, subd. (a)), and assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)). The trial court then sentenced defendant to 15 years to life for the second degree murder conviction, and the upper term of four years for the assault conviction.
On appeal, defendant contends the imposition of the upper term on the assault conviction violates the Sixth Amendment to the United States Constitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi); Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely); and Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). 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).) We must follow Black II. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In deciding to impose the upper term on the assault conviction, the trial court relied on the victims vulnerability, defendants numerous prior convictions, and defendants prior performance on probation.
Defendants numerous prior convictions are based upon the defendants record of prior convictions. (Black II, supra, 41 Cal.4th at p. 816; U.S. v. Fagans (2d Cir. 2005) 406 F.3d 138, 141-142; U.S. v. Corchado (10th Cir. 2005) 427 F.3d 815, 820.) The record shows that, excluding the present offense, defendant had at least six prior convictions as an adult. Defendant does not dispute the truth of any of these convictions. Based upon the undisputed record of defendants prior convictions, the trial court could properly conclude that defendants prior convictions were numerous.
Because this aggravating factor made defendant eligible for the upper term, the trial court did not violate defendants right to a jury trial in imposing the upper term. (Black II, supra, 41 Cal.4th 799, 816.)
DISPOSITION
The judgment is affirmed.
MORRISON , J.
We concur:
SIMS , Acting P.J.
CANTIL-SAKAUYE , J.
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