P. v. Armstrong

Filed 3/23/06 P. v. Armstrong CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. John W. DeGroot, Judge.

Tara K. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Wanda Hill Rouzan, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION AND PERTINENT FACTS

On May 6, 1999, appellant Michael Armstrong pled guilty to felony possession of a controlled substance. (Health & Saf. Code, § 11377, subd. (a).) Judgment was deferred and appellant was referred to a counseling program. After submitting urine samples that were positive for methamphetamine, he was terminated from the counseling program.

On May 13, 2002, appellant was sentenced to the upper term of three years' imprisonment. Two aggravating factors were found: (1) appellant's prior convictions are numerous; (2) his prior performance on probation is unsatisfactory. No mitigating factors were found. Imposition of the sentence was suspended and appellant was placed on three years' probation.

During the following two years, appellant's probation was revoked and reinstated three times for drug related violations.

On October 29, 2004, the court found appellant had violated his probation a fourth time after he submitted urine samples testing positive for methamphetamine.

On January 28, 2005, the court revoked appellant's probation and executed the previously imposed prison sentence.

DISCUSSION

Relying on Blakely v. Washington (2004) 542 U.S. 296, appellant argues judicial imposition of the upper term infringed his federal constitutional jury trial right. During pendency of this appeal, our Supreme Court decided this issue adverse to appellant.

People v. Black (2005) 35 Cal.4th 1238 (Black) held that a jury trial is not required on aggravating factors that justify imposition of the upper term.^[1] In Black, the court explained that jury trial of aggravating factors was not constitutionally required because the California determinate sentencing law simply authorizes a sentencing court to engage in the type of fact-finding that traditionally has been incident to the judge's selection of an appropriate sentence within a statutorily prescribed sentencing range. It is the upper term, not the middle term, which is the statutory maximum for an offense under our sentencing law. The level of discretion available to trial judges in California is comparable to the level of discretion the United States Supreme Court has chosen to permit federal judges to exercise. Therefore, our discretionary system does not violate a defendant's Sixth Amendment right to a jury trial. (Id. at pp. 1254, 1261.)

Appellant acknowledges that we are bound to follow the decisions of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Therefore, following Black and based on our review of the record, we conclude the trial court did not err. It exercised its judicial discretion in a reasonable manner consistent with California Rules of Court, rule 4.420, when it determined that imposition of the upper term was justified because of two aggravating factors (appellant's numerous prior convictions and his prior unsatisfactory performance on probation) and the absence of mitigating factors.

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P. J.; Levy, J.; and Cornell, J.

^[1] Petition for certiorari was filed in the Black case on September 28, 2005, and is pending.

The United States Supreme Court recently granted a petition for certiorari to determine the constitutionality of California's determinate sentencing law in Cunningham v. California (Feb. 21, 2006) __ S.Ct. __ [2006 WL 386377].