People v. Buser

Opinion

SIMS, Acting P. J.

In case No. CM021394, defendant Marcus Aurelius Buser pled no contest to receiving stolen property (Pen. Code, § 496, subd. (a); undesignated statutory references are to the Penal Code) and unlawfully driving a vehicle (Veh. Code, § 10851). The court revoked defendant’s probation in case No. CM020368, in which defendant had pled no contest to possessing a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and admitted serving two prior prison terms (§ 667.5, subd. (b)).

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For both cases the court sentenced defendant to state prison for an aggregate term of four years eight months, calculated as follows: the upper term of three years for receiving stolen property, a concurrent upper term of three years for unlawfully driving a vehicle, a consecutive eight months for possessing a controlled substance, and a consecutive one year for the prior prison term. The court selected the upper term because defendant was on parole and probation when he committed the crimes.

Defendant’s sole contention on appeal is that the trial court violated his Sixth Amendment right to a jury trial by imposing an upper term sentence based on facts not proven to a jury beyond a reasonable doubt. We shall affirm the judgment but direct the trial court to correct two clerical errors in the abstract of judgment.

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Citing

Blakely v. Washington

(2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531] and

Shepard v. United States

(2005) 544 U.S. 13, [161 L.Ed.2d 205, 125 S.Ct. 1254]

(Shepard),

defendant contends the court’s selection of the upper term for his convictions of receiving stolen property and unlawfully driving a vehicle violated his Sixth Amendment right to a jury

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trial. However, our Supreme Court has recently held “that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial.”