P. v. Melles

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Filed 3/22/07 P. v. Melles CA1/2
Opinion Following Rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
AMAN MELLES,
Defendant and Appellant.
A111523
(Alameda County
Super. Ct. No. C146509)
Pursuant to a negotiated plea agreement, defendant Aman Melles pleaded no
contest to a charge of felony petty theft with a prior and, in exchange, received a promise
that three prior felony convictions would be stricken “for sentencing purposes” and that
he would be placed on probation. The court granted probation, but after defendant
violated the terms of his probation, probation was revoked and defendant was sentenced
to the upper term of three years in state prison. Defendant argues three sentencing errors
on appeal: (1) that the aggravating factors cited by the trial court when it imposed the
upper term were not supported by substantial evidence; (2) that the trial court breached
the terms of the plea agreement when it cited the three prior felony convictions as factors
in aggravation supporting imposition of the upper term; and (3) that the imposition of the
upper term violated the Sixth and Fourteenth Amendments of the United States
Constitution pursuant to Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
On January 18, 2007, we filed an opinion in which we rejected all of defendant’s
arguments. The last of those arguments was rejected on the basis of People v. Black

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(2005) 35 Cal.4th 1238 (Black). Four days after we filed our opinion, the United States
Supreme Court concluded in Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct.
856] (Cunningham) that Black had misapplied Blakely. We granted rehearing to consider
the impact of Cunningham on defendant’s last contention. With appropriate changes in
our initial opinion, we again conclude that defendant’s arguments do not establish error,
and affirm the judgment of conviction.
I. Factual and Procedural Background
On December 7, 2003, defendant entered Albertson’s grocery store at Marina
Village Parkway in Alameda carrying a tote bag. He placed nine bottles of liquor in his
bag and exited the store without paying for the items. Defendant was promptly arrested
outside the store, and the liquor was returned to Albertson’s.
By complaint filed December 8, 2003, defendant was charged with felony petty
theft with a prior in violation of Penal Code sections 484(a)/666.1 The prior allegedly
occurred on August 1, 1995. The complaint also alleged that defendant had suffered
three prior felony convictions for which he received prison terms, specifically on
August 1, 1995 (second degree commercial burglary in violation of § 459), on July 24,
1995 (possession for sale of a controlled substance in violation of Health & Safety Code,
§ 11351), and on October 14, 1993 (second degree commercial burglary in violation of
§ 459).
On December 19, 2003, pursuant to a negotiated plea agreement, defendant
pleaded no contest to a felony violation of sections 484(a)/666. In exchange for his plea,
the prosecution agreed that defendant’s prior convictions would be stricken for purposes
of sentencing and he would be granted probation for three-to-five years in lieu of a prison
sentence. After defendant entered his no contest plea, the court found him guilty and
stated, “Three prior felony convictions as charged in the complaint are stricken for
sentencing purposes . . . .”
On January 21, 2004, the court denied a motion by defendant to withdraw his plea,
which motion was based on a claim that one of the alleged priors was invalid. The court
1 All further statutory references are to the Penal Code unless otherwise noted.

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then suspended imposition of sentence and granted five years’ probation. The court also
imposed the standard conditions of probation, which included a requirement that
defendant obey all laws and be of good conduct—which defendant failed to do.
On February 15, 2005, Lorenzo Legaspi, the chief financial officer for the
Alameda Unified School District, arrived at work and discovered that a laptop computer,
its carrying case, and a box of coins were missing from his office. No one associated
with the district had any knowledge of what happened to the items. Legaspi’s secretary,
Joice Frye, reported the theft to the police, who were able to recover several fingerprints
from the computer docking station on Legaspi’s desk.
On March 21, 2005, Frye, whose office was adjacent to Legaspi’s, discovered a
blue backpack “stuffed” behind a printer stand in her office. The backpack contained the
missing coin box, now empty, and a BART fare and schedule booklet, from which the
police recovered a fingerprint. The police were able to identify the fingerprints on the
computer docking station and the BART pamphlet as belonging to defendant. As
defendant was neither an employee of the district nor a student at the school, there was no
legitimate justification for his prints being in the office.
During the ongoing investigation, the police gave a photograph of defendant to
Frye, who passed it on to Legaspi. Legaspi did not recognize him, but Angelia Nava,
another district employee, saw the photo on Legaspi’s desk and reported that she had
seen the individual in the photo outside the school district offices on March 25, 2005.
Nava identified defendant in court as the same individual she had seen outside the
offices.
On April 20, 2005, the district attorney filed a petition to revoke probation in the
case involving the theft of liquor from Albertson’s, alleging that defendant “violated the
terms and conditions of his probation in that he committed a violation of Section 459 of
the Penal Code . . . .” Two days later, the trial court ordered defendant’s probation
summarily revoked.
On July 18, 2005, following two days of testimony, the court found defendant in
violation of his probation and affirmed revocation of probation.

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On August 25, 2005, defendant was sentenced to the upper term of three years in
state prison. In imposing the upper term, the court stated that “the aggravating
circumstances outweigh any mitigating circumstances, and I point specifically to the fact
that he has three prior felony convictions, two of which were prison, involve prison
commitments.”2
This timely appeal followed.
II. Discussion
A. Court Properly Imposed The Aggravated Term
Defendant argues that the factors in aggravation on which the trial court relied,
namely the three prior felony convictions and two prior prison terms, were not supported
by substantial evidence, such that the trial court abused its discretion in relying on them
to support the imposition of the aggravated term. Defendant’s argument fails for several
reasons, both procedural and substantive.
As to the procedural reasons, the People argue that defendant did not object below
when the court cited the reasons for the sentence and, as a consequence, he waived his
right to assert this challenge here. Defendant counters that that “even though the general
principle of forfeiture prohibits parties from addressing on appeal issues not raised at
trial, the argument that a judgment is not supported by substantial evidence, as is here, is
an ‘obvious’ exception to the rule.”
The California Supreme Court considered this issue in People v. Scott (1994)
9 Cal.4th 331 (Scott), and held that defendant may not challenge the trial court’s
discretionary sentencing choices on appeal if he did not did not object below. (Id. at
p. 353; accord, People v. Zuniga (1996) 46 Cal.App.4th 81, 83-84 (Zuniga).) “[C]laims
deemed waived on appeal involve sentences which, though otherwise permitted by law,
were imposed in a procedurally or factually flawed manner.” (Scott, supra, at p. 354.)
2 Defendant’s probation was revoked by, and he was sentenced by, Judge
Rolefson, who had not presided when defendant changed his pleas or was admitted to
probation. It should also be noted that defendant was represented by a deputy from the
public defender’s office who had not appeared at the change of plea hearing. The same
was true for the deputies of the district attorney.

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Neither Scott nor any other authority we have reviewed suggests that there is an
exception in instances where defendant claims a lack of substantial evidence supporting
the aggravating circumstances. Imposition of the aggravated term is a choice left to the
sentencing court’s discretion. (E.g., People v. Stitely (2005) 35 Cal.4th 514, 575 and
authorities cited.) We conclude that use of a sentencing factor in aggravation that is not
supported by substantial evidence qualifies as a sentence “imposed in a . . . factually
flawed manner” (Scott, supra, 9 Cal.4th at p. 354), and is thus subject to the waiver rule.
Accordingly, defendant has waived his right to assert this claim on appeal. Assuming
arguendo that defendant had preserved the issue for appellate review, we would
nevertheless reject it on the merits.
It is, of course, the rule that each aggravating factor on which the trial court relies
must be supported by evidence in the record. (People v. Searle (1989) 213 Cal.App.3d
1091, 1096; People v. Nunley (1985) 168 Cal.App.3d 225, 235 (Nunley) [finding
substantial evidence to support lower court’s choice of sentence].) As noted above, the
trial court imposed the “upper term of three years,” observing that it was “selecting the
upper term because the aggravating circumstances outweigh any mitigating
circumstances” and pointing “specifically to the fact that [defendant] has three prior
felony convictions, two of which were prison, involve prison commitments.” Defendant
asserts two different theories as to why these aggravating factors were unsupported by
evidence. Both theories fail.
First, defendant submits that “contrary to the trial court’s suggestion, [he] did not
have ‘three prior felony convictions’ ” as alleged in the complaint. As to the first prior,
the complaint alleged that defendant “on or about August 1, 1995, was convicted in the
Superior Court of the State of California for the County of Alameda, of the crime of a
Felony, to wit: Second Degree Commercial Burglary, in violation of Section 459 of the
Penal Code of California, and received a prison term therefor.” According to defendant,
this first prior conviction “does not exist.” In claimed support, defendant cites to the
probation officer’s report and recommendation, which lists defendant’s criminal history,
including juvenile offenses, but does not identify any such felony conviction, and in fact

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only lists two, not three, prior adult felonies. Defendant also notes that he “did not admit
any of the three prior convictions alleged in the complaint.” While correct, these facts
are of no avail.
In Nunley, supra, 168 Cal.App.3d 225, defendant argued that one of two
enhancements for two prior burglary convictions should be stricken because it was not
referenced in the probation report. (Id. at p. 235.) The court rejected defendant’s
argument, stating that “where, as here, a defendant who is charged with having suffered a
previous conviction pleads guilty, his plea is conclusive of the fact of having suffered
such conviction.” (Ibid.)
Here, defendant was charged with “petty theft with prior(s).” The one prior
expressly alleged was an August 1, 1995 violation of section 459. Defendant pleaded no
contest to the charge, and the court found him guilty. Pursuant to Nunley, this
conclusively established the fact of that prior. Since defendant does not dispute that the
remaining two prior convictions are supported by evidence in the record, it follows that
the three prior convictions on which the trial court relied in imposing the aggravated term
are all supported by the record.
Second, defendant contends that the trial court erroneously relied on his having
served two prior prison terms, when he had in fact served only one prison commitment.
This argument fails for two reasons. First, while the trial court did initially indicate that
defendant had two prison commitments, defendant corrected the court on this point:
“DEFENDANT: You said I’ve been in prison three times?
“THE COURT: Two.
“DEFENDANT: I’ve been in prison one time my whole adult life.
“THE COURT: I’m looking at a—more important is the fact that you suffered
the prior felony convictions, including two for burglary. . . .”
Thus, the court was aware that defendant had only been imprisoned on one
occasion when it imposed the upper term.
Further, while the probation report supports defendant’s assertion that he has
“been in prison one time [his] whole adult life,” the report also indicates that defendant

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has in fact been sentenced to two separate prison terms, one for an August 20, 1993
second-degree burglary and one for a June 11, 1994 possession for sale of a controlled
substance. It appears, however, that defendant served those two terms concurrently.
Thus, while defendant has only been committed to prison on one occasion as an adult, the
fact remains that he has been sentenced to two prison terms arising out of two separate
criminal cases against him. This is but a difference of semantics that in no way
undermines the court’s reliance on defendant’s criminal past in selecting the upper term.
In light of the above, we conclude that the factors in aggravation on which the trial court
relied are supported by evidence in the record.
Further, even if we did determine that the factors on which the court relied were
unsupported by evidence in the record, which we do not, we still would not conclude that
the trial court abused its discretion in imposing the aggravated term because the
imposition of the upper term is abundantly supported by other aggravating factors. (See
People v. Arbee (1983) 143 Cal.App.3d 351, 357 [although reference to aggravating
factor was clearly erroneous, the trial court listed a number of additional reasons which
justified imposition of the upper term]; People v. Dreas (1984) 153 Cal.App.3d 623, 636
[“It is well settled that the imposition of the aggravated term may be sustained upon a
single valid factor . . . .”].) Here, there are the two felony convictions and defendant’s
prior prison term, all of which are supported by the record and were referenced by the
trial court as justification for imposition of the upper term. Additionally, the probation
report identifies other circumstances in aggravation. It states that “defendant’s prior
convictions as an adult and sustained petitions in juvenile delinquency proceedings are
numerous or of increasing seriousness” and “defendant’s prior performances on court and
formal probation, as well as parole, were unsatisfactory.”
As a final matter, in arguing the case should be remanded for resentencing,
defendant notes that his counsel identified numerous factors in mitigation and submits
that based on the record, “a result more favorable to [defendant] is reasonably probable
on remand.” However, it is settled that “[t]he trial court need not explain its reasons for
rejecting mitigating factors.” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.)

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B. Trial Court’s Consideration Of Defendant’s Prior Convictions In Imposing
The Aggravated Term Did Not Breach The Negotiated Plea Agreement
We turn next to defendant’s argument that the trial court’s reliance on defendant’s
prior felony convictions breached the negotiated plea agreement. Defendant contends
that he agreed to plead no contest to the petty theft charge, in exchange for which the
three prior convictions alleged in the complaint would be stricken for purposes of
sentencing. The prosecutor acknowledged these terms, as did the court when it stated
that the “[t]hree prior felony convictions as charged in the complaint are stricken for
sentencing purposes.” According to defendant, he adhered to the terms, but the court
failed to do so, pointing “specifically to the fact that he has three prior felony
convictions” when imposing the three-year upper term following probation revocation.3
Again, we agree with the People that defendant waived this argument by failing to
object below at the time of sentencing. (See Scott, supra, 9 Cal.4th at p. 353 [defendant
may not challenge the trial court’s discretionary sentencing choices on appeal if he did
not object at trial]; Zuniga, supra, 46 Cal.App.4th at pp. 83-84.) Defendant seeks to
avoid application of the waiver rule by submitting that an objection is not necessary to
preserve it for appellate review where the sentence in dispute was unauthorized and, he
claims, the sentence here was unauthorized “because the original negotiated disposition
specified that the ‘prior convictions will be stricken for purposes of sentencing.’ ”
Defendant misconstrues the meaning of an “unauthorized sentence.”
The Scott court described an “unauthorized sentence” as one that “could not
lawfully be imposed under any circumstance in the particular case.” (Scott, supra,
3 The People claim that defendant is “precluded from raising this issue on direct
appeal because he never obtained a certificate of probable cause.” Pursuant to
section 1237.5, a certificate is required where defendant appeals “from a judgment of
conviction upon a plea of guilty or nolo contendere, or a revocation of probation
following an admission of violation . . . .” Here, defendant’s revocation of probation
followed a contested hearing, not an admission of violation. A certificate of probable
cause was therefore not required. Moreover, a certificate is not required because
defendant is raising only issues related to his sentence that do not call into question the
validity of his plea. (See People v. Shelton (2006) 37 Cal.4th 759, 766 and authorities
cited.)

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9 Cal.4th at p. 354.) And in People v. Welch (1993) 5 Cal.4th 228, 235, the Supreme
Court explained that unauthorized sentences “generally involve pure questions of law that
can be resolved without reference to the particular sentencing record developed in the
trial court.” Here, defendant does not submit that the sentence was unlawful in that it
could never be imposed, but instead contends that it was contrary to the terms of the plea
agreement. Resolution of this issue is a question of fact that depends on the sentencing
record. (See Lyons v. Superior Court (1977) 73 Cal.App.3d 625, 627-628.) This
exception therefore does not apply.
Alternatively, defendant submits that “[a] plea bargain is contractual in nature and
subject to general principles of contract law” and here, where “the critical facts in a plea
agreement are undisputed, the issue is cognizable on appeal.” This assertion is devoid of
authority and is contrary to the rule recognized in Scott, supra, 9 Cal.4th 331. But even if
we were to consider the merits, we would reject defendant’s argument.
Defendant presents his argument in terms of due process, citing People v.
Mancheno (1982) 32 Cal.3d 855, 860, for the proposition that if the state violates the plea
agreement, the accused has a due process right to a remedy. The People, on the other
hand, disagree that the issue has due process implications. They theorize that because the
plea agreement was between defendant and the prosecution, and the court was not a
party, it could not breach the agreement. Accordingly, the People urge, we should
instead evaluate whether the trial court abused its discretion in considering the three prior
convictions when it imposed the upper term. We need not resolve this dispute, however,
because the result is the same under either theory: defendant received what he bargained
for, and there was no error.
As noted above, defendant’s plea of no contest to the petty theft charge was in
exchange for the promise that the three prior convictions alleged in the complaint would
be stricken for purposes of sentencing and he would be granted probation. The court then
struck the priors, suspended imposition of sentence, and granted probation. Had the court
not struck the priors, defendant would have been ineligible for probation absent
exceptional circumstances. (§ 1203, subd. (e)(4).) It is thus clear that the terms of the

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plea bargain had one goal—to render defendant eligible for probation—a goal that was
only attainable by striking the three priors. Once defendant was granted probation, he
received the benefit of his bargain.
The People cite multiple cases that are dispositive of this issue. One is People v.
Turner (1975) 44 Cal.App.3d 753 (Turner), where pursuant to a negotiated plea
agreement defendant pleaded guilty to a charge of burglary and the prosecutor agreed to
strike a prior conviction and stipulated to local time. Defendant was then granted
probation, but he was charged a few weeks later with committing an armed robbery, his
probation was revoked, and he was sentenced to prison. (Id. at p. 755.) On appeal,
defendant argued, inter alia, that the court did not comply with the terms of the plea
agreement when it sentenced him to prison instead of county jail upon revocation of his
probation. (Id. at pp. 756-757.) The Court of Appeal disagreed, stating, “There was
nothing in this plea providing for what would happen if probation were violated.
Needless to say, such a bargain would be difficult to negotiate since neither party would
know in advance what the violation of probation might be. Here, after the violation
occurred, there was no plea bargain involved because the bargain contemplated the initial
sentencing proceeding only. It was within the discretion of the trial court to look at the
situation anew . . . .” (Id. at p. 757.)
Another is our opinion in People v. Martin (1992) 3 Cal.App.4th 482 (Martin).
There, defendant pleaded no contest to a burglary charge on the “condition that he be
sentenced to no more than the low term of two years in state prison or placed on
probation with residential treatment.” (Id. at pp. 484-485.) The court then “placed
[defendant] on probation for three years with conditions including that he serve one
hundred eighty days in county jail and commit himself to a specified treatment program.”
A few months later, defendant violated the terms of his probation by leaving the

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treatment program, and probation was revoked. (Id. at p. 485.) The court then sentenced
defendant to the middle term of four years on the burglary charge.4 (Id. at p. 486.)
On appeal, defendant argued “that the trial court impermissibly violated the terms
of the original plea bargain . . . by sentencing him to a four-year prison term when the
plea bargain provided for a maximum term of two years in prison or probation.” (Martin,
supra, 3 Cal.App.4th at p. 487.) In rejecting defendant’s argument, Presiding Justice
Kline observed, “Several cases have concluded that where a defendant granted probation
as part of a plea bargain violates that probation, subsequent sentencing is not limited by
the terms of the original plea,” citing People v. Bookasta (1982) 136 Cal.App.3d 296,
299-300 (Bookasta); People v. Jones (1982) 128 Cal.App.3d 253, 262; Turner, supra,
44 Cal.App.3d 753, 757; and People v. Allen (1975) 46 Cal.App.3d 583, 590. And in a
passage equally applicable here, Justice Kline quoted the court in Bookasta, supra,
136 Cal.App.3d at pp. 299-300: “ ‘A consummated plea bargain is not a perpetual
license to a defendant to violate his probation. The plea bargain does not insulate a
defendant from the consequences of his future misconduct. “A defendant gets the benefit
of his bargain only once. Like time, a plea bargain once spent is gone forever.” ’ ”
(Martin, supra, 3 Cal.App.4th at p. 487; accord People v. Hopson (1993) 13 Cal.App.4th
1, 2-3 (Hopson) [trial court complied with terms of the plea bargain when it placed
defendant on probation, and when defendant violated the terms of probation, there was no
agreement limiting the court’s discretion to impose sentence].)5
4 At the same time, defendant was also sentenced in two additional cases,
receiving an aggregate term of seven years and eight months in state prison. (Martin,
supra, 3 Cal.App.4th at p. 486.)
5 In People v. Alkire (1981) 122 Cal.App.3d 119, Division One of the Fourth
District Court of Appeal held to the contrary in a divided panel opinion. However, in
Hopson, supra, 13 Cal.App.4th at pp. 2-3, that same court subsequently re-examined the
issue in light of the “clear weight of authority” rejecting Alkire and revised its position to
be consistent with Turner, supra, 44 Cal.App.3d 753, Martin, supra, 3 Cal.App.4th 482,
Bookasta, supra, 136 Cal.App.3d 296, and Jones, supra, 128 Cal.App.3d 253. (Hopson,
supra, 13 Cal.App.4th at pp. 2-3.)

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Defendant attempts to distinguish Turner by quoting the Turner court’s
observation that the defendant “bargained for local time [and] he received probation.”
(Turner, supra, 44 Cal.App.3d at p. 757.) Similarly, he notes that as to Martin, “the
defendant argued that his plea bargain was violated when he was sentenced upon
revocation of probation to a four-year prison term; ‘the plea bargain provided for a
maximum term of two years in prison or probation.’ ” (Quoting Martin, supra,
3 Cal.App.4th at p. 487.) And he claims Hopson is distinguishable because as stated in
Hopson, supra, 13 Cal.App.4th at p. 3, “there was no agreement limiting the court’s
discretion to impose sentence. The plea bargain form advised Hopson he would face the
maximum term if he violated probation.” These factual distinctions are completely
insignificant and in no way render the holdings of Turner, Martin, and Hopson
inapplicable here.
Defendant also advances a theory that the phrase “stricken for sentencing
purposes” must have referred to more than just the granting of probation, because at the
time the court granted probation, defendant had not yet been sentenced. He explains:
“This is so because, ‘when the trial court suspends imposition of sentence, no judgment is
then pending against the probationer, who is subject only to the terms and conditions of
probation.’ [Citation.] ‘In such cases, no judgment has been entered and no sentence has
been imposed.’ [Citation.] Upon revoking probation, however, the trial court ‘may, if
the sentence has been suspended, pronounce judgment for any time within the longest
period for which the person might have been sentenced.’ [Citation.]” While defendant
may be correct as far as the technical definition of “sentencing,” that is not how the term
is commonly used and understood, a fact evidenced by Turner, supra, 44 Cal.App.3d at
p. 757, where the court observed that “[p]robation was a more, not less, lenient sentence
than [defendant] bargained for.” Clearly, the term is commonly used to refer to the
punishment imposed, be it probation or a prison commitment. And, clearly, that is how it
was used in the instant case.
In sum, defendant is incorrect in his assertion that “[i]t was reasonable for [him] to
expect, and for the prosecution and court to understand, that a reasonable implication of

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the agreement was that ‘his prior convictions [would] be stricken for purposes of
sentencing’ following revocation of probation, when the suspension of the imposition of
sentence is lifted and the trial court pronounces judgment and sentence.” To the contrary,
this expectation was unreasonable and contrary to the controlling legal authority. And we
reject it.
C. The Trial Court’s Imposition Of The Aggravated Term Did Not Violate
Blakely v. Washington
Finally, defendant challenges the trial court’s imposition of a three-year upper
term sentence, arguing that the sentence is unconstitutional as recognized by Blakely,
supra, 542 U.S. 296, where the United States Supreme Court held that a Washington
State court denied a criminal defendant his constitutional rights to a jury trial by
increasing the defendant’s sentence for second-degree kidnapping from the “standard
range” of 49 to 53 months to 90 months based on the trial court’s finding that the
defendant acted with “ ‘deliberate cruelty.’ ” (Blakely, supra, 542 U.S. at pp. 303-304.)
The Blakely court found that the state court violated the rule previously announced in
Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) that, “ ‘Other than the fact
of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.’ ” (Blakely, supra, 542 U.S. at p. 301.) In reaching this conclusion, the court
clarified that, for Apprendi purposes, the “statutory maximum” is “not the maximum
sentence a judge may impose after finding additional facts, but the maximum he may
impose, without any additional findings.” (Blakely, supra, 542 U.S. at pp. 303-304.)
Defendant contends his sentence must be reversed pursuant to Blakely, supra,
542 U.S. 296, because the trial court committed constitutional error by imposing an upper
term sentence based on aggravating factors that were not supported by jury findings.
Prior to January 22, 2007, we would—and in our initial opinion we did—have
rejected defendant’s argument on the basis that the issue had been authoritatively decided
in Black, supra, 35 Cal.4th 1238, which we would be bound to apply under Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. On that date, however, the

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United States Supreme Court in Cunningham, supra, ___ U.S. ___ [127 S.Ct. 856], held
that Black was a misapplication of Blakely, supra, 542 U.S. 296. Defendant and the
People submitted written argument on the impact of Cunningham in their respective
materials on rehearing. After consideration of these materials, we conclude that
imposition of the aggravated term for defendant’s violation of section 484 did not
contravene Blakely or Cunningham.
Apprendi, Blakely, and Cunningham all exempted prior convictions from
the category of facts that must be found by a jury in order to increase a defendant’s
sentence beyond the statutory maximum. (Apprendi, supra, 530 U.S. at pp. 488, 490;
Blakely, supra, 542 U.S. at p. 301; Cunningham, supra, ___ U.S. ___ [127 S.Ct. at
p. 860].) It is undisputed that defendant had three prior felony convictions. This factor
would have supported imposition of the upper term without violating Blakely or
Cunningham because it involves objective facts provable from court records, whose
ascertainment is traditionally performed by judges as part of the sentencing function.
(See Almendarez-Torres v. United States (1998) 523 U.S. 224, 243-244; People v.
McGee (2006) 38 Cal.4th 682, 709.) “Only a single aggravating factor is required to
impose the upper term. . . .” (People v. Osband (1996) 13 Cal.4th 622, 728.)
Defendant’s claim of Blakely-Cunningham error fails accordingly.

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III. Disposition
The judgment is affirmed.
_________________________
Richman, J.
We concur:
_________________________
Haerle, Acting P.J.
_________________________
Lambden, J.

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