P. v. Brooks
Pursuant to a plea agreement, defendant pleaded guilty to possession of a firearm by a felon in violation of Penal Code section 12021, subdivision (a)(1),[1]and admitted the gang enhancement allegation ( 186.22, subd. (b)(1)). In return, defendant was placed on formal probation for three years on various terms and conditions, including serving 388 days in county jail. Subsequently, while on probation in this case, defendant was convicted of commercial burglary ( 459) in Orange County. As a result, his probation in this case was revoked, and he was sentenced to a total term of seven years in state prison as follows: the upper term of three years for the gun possession charge, plus the upper term of four years for the gang enhancement allegation. Defendants sole contention on appeal is that he was deprived of his federal and state constitutional rights to a jury trial and due process under Cunningham v. California (2007) U.S., [127 S .Ct. 856, 868] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed the upper term. Pursuant to the prior conviction exception articulated in Almendarez-Torres v. United States (1998) 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350], court reject this contention and affirm the judgment.
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