P. v. Hernandez

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Filed 12/11/06 P. v. Hernandez CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 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 This opinion has not been certified for publication or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
THIRD APPELLATE DISTRICT
(Placer)
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THE PEOPLE,
Plaintiff and Respondent,
v.
ARMONDO PADILLA HERNANDEZ,
Defendant and Appellant.
C051810
(Super. Ct. No. 62053550)
Defendant Armando Hernandez was convicted by a jury of
transportation of a controlled substance (count one), possession
of a controlled substance (count two), felony driving under the
influence of drugs (count three) and misdemeanor under the
influence of a controlled substance (count four). As to three
prior convictions alleged as enhancements under count three,
defendant waived trial by jury and admitted those prior
convictions as alleged.
The trial court imposed the upper term of four years as to
count one, sentenced defendant to an aggregate term of four years
and eight months in state prison as to all counts, and ordered him
to pay specified restitution fines.

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On appeal, defendant contends the upper term violates Blakely
v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). We
shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was pulled over by a Roseville police officer for
driving with an inoperable headlight. He told the officer that he
was test driving the car, which was owned by the passenger, Roy
Loya, but was not driving it too far because he did not have a
driver’s license.
The officer noticed defendant had bloodshot, watery eyes,
rapid speech, eyelid tremors and an elevated pulse, all possible
signs, in the officer’s opinion, of being under the influence of
drugs. When asked whether he had used any illegal drugs,
defendant responded that he “had not used any illegal drugs in
years.” A search of the car revealed a clear plastic baggie
containing a substance later identified as approximately .20 grams
of methamphetamine. Both defendant and Loya denied any knowledge
or ownership of the baggie.
Defendant was arrested and taken to the Roseville City Jail,
where his blood was drawn to test for illegal substances. The
test results were positive for methamphetamine.
By an amended complaint deemed by stipulation of the parties
to be the information, defendant was charged with transportation
of a controlled substance (methamphetamine), possession of a
controlled substance (methamphetamine), felony driving under the

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influence of drugs and misdemeanor under the influence of a
controlled substance (methamphetamine). Defendant pled not guilty
to all counts.
Following a jury trial, defendant was found guilty on all
counts. Following entry of the verdicts and outside the presence
of the jury, defendant waived trial by jury on the three prior
convictions (all for driving under the influence) alleged as to
count three, admitting each of those priors.
The court sentenced defendant to the upper term of four years
in state prison as to count one, the middle term of two years
(stayed) as to count two, eight months or one-third the middle
term as to count three to be served consecutively, and
180 days in county jail as to count four to be served
concurrently.
In articulating the reasons for imposition of the upper term,
the court stated, “[T]he factors in aggravation are stated as
follows: And the court does concur that [defendant] has a prior
record of convictions. It’s quite a lengthy record, especially
for the time that he has evidently been in the country. He was on
probation on five different grants of probation at the time this
occurred. His performance on probation is totally
unsatisfactory.” The court found no mitigating factors.
Defendant filed a timely notice of appeal.

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DISCUSSION
Defendant’s sole contention on appeal is that the trial
court’s imposition of the upper term for count one violated his
right to a jury trial under Blakely and under the sixth and
fourteenth amendments to the United States Constitution.
Defendant recognizes that his claim of Blakely error must
fail as a result of the California Supreme Court’s decision in
People v. Black (2005) 35 Cal.4th 1238, 1244, 1254-1256 (Black);
Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455.) Thus, he raises the contention solely “because it has not
been resolved by the United States Supreme Court and for
preservation of federal court access and review.”
In any event, we point out that not only does the holding in
Black defeat defendant’s claim of error, it fails because the
trial court imposed the upper term due, at least in part, to
defendant’s prior record of convictions. The rule of Blakely does
not apply to the use of prior convictions to increase the penalty
for a crime. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490
[147 L.Ed.2d 435, 455 ].) Since one valid factor in aggravation
is sufficient to expose defendant to the upper term (People v.
Cruz (1995) 38 Cal.App.4th 427, 433), the trial court’s
consideration of other factors, in addition to defendant’s prior
convictions, to impose the upper term did not violate the rule of
Blakely.

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DISPOSITION
The judgment is affirmed.
SIMS , Acting P.J.
We concur:
DAVIS , J.
HULL , J.

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