P. v. Dieters

Filed 9/19/07 P. v. Dieters 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Michael Eric Dieters appeals from a judgment imposing the upper term upon his plea of nolo contendere to the charge of assault with a deadly weapon or by means of force likely to produce great bodily injury in violation of Penal Code section 245, subdivision (a). Upon the entry of his plea, numerous additional counts were dismissed. The court sentenced defendant to the upper term of four years, as it had previously advised him would be the maximum period of commitment, and suspended execution of the sentence and placed defendant on three years probation. Defendant filed a timely notice of appeal challenging the sentence and also the validity of his plea. His request for a certificate of probable cause was denied and he therefore makes no contention with respect to the latter issue.

With respect to the sentence, defendants opening brief, filed before the decision of our Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black II), contended that the trial court had violated his rights as defined in Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856] and the prior cases on which that decision was based. In selecting the aggravated term, the trial court had relied on four factors not found by a jury or admitted by him: that he has engaged in violent conduct and represents a danger to society, that his prior convictions are numerous, that he was on probation when the crime was committed, and that his prior performance on probation was not satisfactory. In his reply brief defendant acknowledges that in Black II the court held that the single fact of a prior conviction, as found in the present case, is constitutionally sufficient to support the upper term sentence imposed in the present case. He persists in his appeal because it is possible that future federal adjudication of this issue may result in a reversal or modification of the holding in Black II. We agree with defendants implicit recognition that this court is bound by the decision in Black II, and that the sentence in this case was imposed in accordance with the standards approved in that case.

The judgment is affirmed.

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Pollak, Acting P. J.

We concur:

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Siggins, J.

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Horner, J.*

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* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.