People v. Stuart

Opinion

ROBIE, J.

Pursuant to a negotiated agreement, defendant Shawn Ransom Stuart pled no contest to forcible rape and making criminal threats. The trial

[314]

court imposed the upper term of eight years for the rape based on its finding that “the circumstances in mitigation are not outweighed by those in aggravation, . . . including the following, the crime involved great violence, great bodily injury with the threat of great bodily injury; defendant used or was armed with a weapon, and the victim was particularly vulnerable.” For making a criminal threat, the court imposed a consecutive term of eight months.

On appeal, defendant contends the court’s imposition of the upper term for the rape based on its finding of the above factors violated his constitutional right to have the aggravating factors determined by a jury beyond a reasonable doubt as required by

Cunningham v. California

(2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856],

Blakely v. Washington

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

Apprendi

v.

New Jersey

(2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348], We reject this claim.

Following the filing of the briefs in this case, the California Supreme Court rendered its decision in

People v. Black

(2007) 41 Cal.4th 799 [62 Cal.Rptr.3d 569, 161 P.3d 1130], concluding that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant,

or is justified based upon the defendant’s record of prior convictions.” {Id.