Opinion
NOT TO BE PUBLISHED.
Super. Ct. No. 03F8558
SIMS, Acting P.J.A jury convicted defendant Ronald Raymond Wilson on one felony count of driving under the influence of alcohol or drugs (DUI). (Count 1; Veh. Code, § 23152, subd. (a).) Defendant waived jury trial on the allegations of a prior conviction and a prior prison term. (Veh. Code, §§ 23550.5; Pen. Code, § 667.5, subd. (b).) Outside the jury’s presence, defendant pled no contest to a misdemeanor charge of driving with a suspended or revoked license. (Count 2; Veh. Code, § 14601.1, subd. (a).)
In a bifurcated proceeding, the trial court found that defendant had been convicted of felony DUI with three prior convictions and had served a prior separate prison term for that conviction. (Pen. Code, § 667.5, subd. (b).)
The probation report recommended the upper term of three years in state prison on count 1, enhanced by one year for the prior prison term, based on the following circumstances in aggravation: defendant’s prior convictions were numerous, he was on probation when the crime was committed, and his prior performance on probation was unsatisfactory. Under “criteria affecting probation,” the probation report noted that this offense was defendant’s fourth DUI. The report found no circumstances in mitigation.
At sentencing, defendant requested that the court impose probation, including a mandatory rehabilitation program. He presented letters on his behalf, including his own; he presented witnesses who testified about defendant’s good character and about a substance abuse program offered to Native Americans such as defendant; and he testified about his willingness to enter and profit from the program.
The trial court adopted the probation report’s recommended sentence, including the aggravating factors specified by the report; the court expressly found no factors in mitigation. The court noted that it was denying probation because defendant had violated parole and probation many times before and “the public safety is a serious issue here[.]” The court credited defendant with time served in jail as to count 2.
Defendant contends that the trial court erred by refusing to consider his alcoholism as a mitigating factor; he also contends that his upper-term sentence violated Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We shall affirm.
FACTS
A police officer stopped defendant on a state highway on the night of October 30, 2003, after following his pickup truck for three-quarters of a mile and observing it weave over the center line and the fog line.
When defendant got out, he was unsteady on his feet, he smelled of alcohol, his eyes were bloodshot and watery, and his speech was thick and slurred. His response to the horizontal gaze nystagmus test indicated that he was under the influence. He refused to perform field sobriety tests or to give a blood or breath sample.
A blood sample taken involuntarily from defendant an hour after his arrest showed a blood alcohol level of .07 percent, as well as the presence of Vicodin and marijuana.
DISCUSSION
I
Relying on People v. Simpson (1979) 90 Cal.App.3d 919, defendant contends that the trial court erred by failing to consider his alcoholism as a mitigating factor. As defendant acknowledges, however, this court has previously refused to follow Simpson. (People v. Reyes (1987) 195 Cal.App.3d 957, 960-964 (Reyes).) Defendant gives us no persuasive reason to reconsider that position.
In Reyes, supra, 195 Cal.App.3d 957, we observed: “As a policy matter, when a defendant has a drug addiction or substance abuse problem, where the defendant has failed to deal with the problem despite repeated opportunities, where the defendant shows little or no motivation to change his life style, and where the substance abuse problem is a substantial factor in the commission of crimes, the need to protect the public from further crimes by that individual suggests that a longer sentence should be imposed, not a shorter sentence. For example, the felony drunk driver who is suffering from an uncontrolled alcoholism should be sentenced to a longer term, not a shorter one, in order to prevent him from driving under the influence again.” (Id. at p. 963; italics added.)
Reyes is precisely on point. Defendant, a multiple DUI offender, until now has neither attempted to control his alcoholism nor shown any interest in doing so. The trial court properly refused to treat it as a mitigating factor.
II
Defendant contends that his upper-term sentence violated Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856]. He is wrong.
Applying the Sixth Amendment to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jury’s verdict or admitted by defendant; thus, when a sentencing court’s authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely v. Washington (2004) 542 U.S. 296, 302-305 [159 L.Ed.2d 403, 413-414] (Blakely).)
Accordingly, in Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856], the United States Supreme Court overruled the California Supreme Court’s holding in People v. Black (2005) 35 Cal.4th 1238 that the judicial fact-finding necessary to impose an upper term does not violate Blakely. Yet Blakely’s proscription does not apply to the use of prior convictions to increase the penalty for a crime. (Cunningham, supra, 549 U.S. ___, ___ [166 L.Ed.2d at p. 869].) A single valid aggravating factor justifies the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.)
In People v. Black (2007) 41 Cal.4th 799 (Black II), our Supreme Court held that, under Cunningham, when a trial court uses a proper aggravating factor to impose the upper term, it does not matter whether other factors the court relied on were improper. (Black, supra, at p. 816.) The first factor cited in the probation report and adopted by the trial court, defendant’s record of prior convictions, is a proper aggravating factor under Cunningham, Blakely, and Apprendi. (Black II, supra, at p. 813.) Thus, contrary to defendant’s argument, we need not decide whether his on-probation status and poor performance on probation were also proper aggravating factors.
DISPOSITION
The judgment is affirmed.
We concur: HULL, J., CANTIL-SAKAUYE, J.