Tu

This matter comes to us on remand from the United States Supreme Court, following grant of certiorari and vacation of the judgment, for our "further consideration in light of Cunningham v. California [ (2007) 549 U.S. ___ , 127 S.Ct. 856 , 166 L.Ed.2d 856 ( Cunningham ) ]." In his supplemental brief on remand, appellant Vincent Tu urges that his Sixth Amendment rights as expounded in Apprendi v. Neiv Jersey (2000) 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 ( Apprendi ), Blakely v. Washington (2004) 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 ( Blakely ) and Cunnningham, supra, 549 U.S. ___ , 127 S.Ct. 856 were violated. This is so, he insists, because the trial court imposed an upper term sentence based on (1) several nonrecidivist factors which should have been submitted to a jury but erroneously were not; and (2) his record of prior sustained juvenile petitions, reliance upon which is subject to "considerable doubt."

We conclude that under Apprendi and our Supreme Court's recent decision in People v. Black (2007) 41 Cal.4th 799 , 62 Cal.Rptr.3d 569 , 161 P.3d 1130 ( Black II ), reliance on this latter factor sufficed to empower the trial court to impose…