Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Super.Ct.No. FMB008464, Rodney A. Cortez, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
Defendant and appellant Maria Elaine Aversa appeals following revocation and termination of her probation. She contends the trial court erred when it relied on her poor performance on probation to justify imposing an aggravated term of three years for her offense of possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) Defendant also argues the trial court violated her constitutional right to a jury trial under Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham) because it imposed the upper term based on facts that were not found true by a jury. In addition, defendant contends the trial court erred by not awarding her conduct credits under Penal Code section 4019.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was stopped by a deputy sheriff on September 3, 2006, after being seen crossing a highway without a crosswalk. The deputy recognized defendant as an active parolee and determined she was under the influence of a controlled substance. A subsequent search of defendant’s residence revealed a plastic baggie containing methamphetamine, a glass pipe, and a small amount of marijuana.
Defendant pled guilty to possession of methamphetamine and was granted supervised probation for a period of three years pursuant to Proposition 36, subject to various terms and conditions. Based on her failure to appear and other drug-related probation violations, two separate petitions to revoke her probation were executed on November 7, 2006, and January 8, 2007. The court revoked her Proposition 36 probation because she failed to complete treatment, disappeared, and failed to report for over a month, and because she would not be available for treatment as a result of a parole violation in another case. Defendant then submitted a drug court application. Probation was reinstated on May 7, 2007, subject to the additional condition that defendant participate in the drug court rehabilitation program.
On June 19, 2007, defendant was remanded into custody as a result of “a dirty test.” She was expected to spend time in custody for a parole violation in another case and then appear in court on November 26, 2007, in this case, after her release. She was then returned to probationary status in this case on or about November 26, 2007, but she failed to appear for a drug court review hearing on January 7, 2008, so a bench warrant was issued.
On February 25, 2008, the court found defendant in violation of her probation and terminated her from probation and the drug court program. The court then sentenced defendant to the aggravated term of three years in state prison.
DISCUSSION
Forfeiture
In pertinent part, rule 4.435(b)(1) of the California Rules of Court (rule 4.435(b)(1)), states as follows: “On revocation and termination of probation . . . when the sentencing judge determines that the defendant will be committed to prison: [¶] . . . [¶] The length of the sentence must be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term.” Defendant contends the trial court violated rule 4.435(b)(1) when it imposed the upper term based on her unsatisfactory performance on probation. During the sentencing hearing on February 25, 2008, the trial court stated in pertinent part as follows: “I’ll also find the aggravated term is the appropriate term, given that her—not only was she not in compliance with the drug court program and tested positive for drugs on more than one occasion but she—we had to issue warrants for her arrest where she did not come to court as directed . . . and that was on more than one occasion. Her history on parole has not been satisfactory. This is not her first offense, and the aggravated term is appropriate.”
The People contend defendant forfeited this claim because she did not object on this basis in the trial court. We agree. A defendant who does not make a specific objection in the trial court may not raise on appeal any claims “involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.” (People v. Scott (1994) 9 Cal.4th 331, 353.) This is because “[r]outine defects in the court’s statement of reasons are easily prevented and corrected if called to the court’s attention.” (Ibid.)
In the probation report dated October 2, 2006, at the time defendant was originally granted probation, the probation officer cited a number of factors in aggravation, including defendant’s prior criminal record and her unsatisfactory performance on parole since she was on parole when she committed the offense in this case. In the probation report prepared for the sentencing hearing on February 25, 2008, when probation was terminated, the probation officer recommended the aggravated term. The recommendation was based not only on the aggravating circumstances cited in the prior report but also on defendant’s unsatisfactory performance while on probation under Proposition 36 and in the drug court review program. Thus, defendant was not only aware of the potential for an aggravated term, she was also aware that the aggravated term was recommended, based, in part, on her performance on probation. Despite this awareness, she did not object based on rule 4.435(b)(1) at the time of sentencing. Although she concedes she did not specifically object to the upper term based on rule 4.435(b)(1), defendant contends she did not forfeit her claim because her attorney argued the mitigated term should be imposed. Counsel’s general argument in favor of a mitigated term is simply not enough to put the court on notice that imposing an aggravated term based on unsatisfactory performance on probation could violate rule 4.435(b)(1). Having raised no specific objection, we conclude defendant forfeited her right to contest any failure by the trial court to state adequate reasons for its selection of the upper term on the record.
Ineffective Assistance of Counsel
Alternatively, defendant cites the United States Supreme Court’s decision in Strickland v. Washington (1984) 466 U.S. 668, and argues her counsel’s performance was constitutionally ineffective because he did not object to the court’s reliance on her conduct on probation to support the upper term. We therefore consider defendant’s argument in the context of her ineffective assistance of counsel claim.
A cognizable claim of ineffective assistance of counsel requires a showing “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.” (Strickland v. Washington, supra,466 U.S. at p. 687.) “[T]he performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” (Id. at p. 688.) To prevail on an ineffective assistance of counsel claim, a defendant must also establish counsel’s performance prejudiced his defense. (Id. at p. 687.) To establish prejudice, a defendant must demonstrate “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at p. 694.) Because a defendant must prove both elements of the Strickland test in order to prevail, courts may reject an ineffective assistance of counsel claim if it finds counsel’s performance was reasonable or the claimed error was not prejudicial. (Id. at p. 687.) “Because we accord great deference to trial counsel’s tactical decisions, counsel’s failure to object rarely provides a basis for finding incompetence of counsel.” (People v. Lewis (2001) 25 Cal.4th 610, 661.)
Defendant cites People v. Colley (1980) 113 Cal.App.3d 870 (Colley) to support her argument that her counsel should have objected to the upper term based on rule 4.435(b)(1). The defendant in Colley was sentenced to the middle term for burglary. However, the sentence was recalled under former Penal Code section 1170, subdivision (d), and the defendant was placed on probation. (Colley, at pp. 871-872.) When probation was revoked, the trial court, expressing exasperation with the defendant’s failure to live up to the grant of leniency, sentenced him to the upper term on the burglary conviction. (Id. at p. 872.) On appeal, the appellate court concluded the aggravated term was improperly based on defendant’s performance on probation in violation of former rule 435(b)(1) of the California Rules of Court, now renumbered rule 4.435(b)(1). (Colley, at p. 873.) As a result, the Court of Appeal modified the sentence from the upper to the middle term. (Id. at p. 874.)
For our purposes, the two rules are identical and only the numbering has changed.
Defendant believes the upper term was not justified based solely on the circumstances of the current offense or the other aggravating factors—her prior conviction and poor performance on parole. Therefore, based on Colley, she contends the trial court would have imposed a lesser sentence if her counsel argued her performance on probation in this case should not be considered pursuant to rule 4.435(b)(1). We disagree.
As defendant acknowledges, the appellate court in People v. Harris (1990) 226 Cal.App.3d 141 (Harris) reached a conclusion which undermines defendant’s argument. Harris essentially sets forth an exception to rule 4.435(b)(1) based on a factual scenario that was not at issue in Colley and is more closely analogous to the facts at issue in this case. After the original grant of probation, the defendant in Harris had his probation revoked and then reinstated. (Harris, at pp. 143-144.) Citing former California Rules of Court, rule 435(b)(1), the defendant argued that the court could consider only those circumstances existing at the time probation was originally granted. The Court of Appeal disagreed and concluded that “a later sentence upon revocation of the reinstated probation may take into account events occurring between the original grant and the reinstatement.” (Harris, at p. 147.) “To hold otherwise would seriously impede a court’s flexibility to deal effectively with the offender who, granted the ‘clemency and grace’ of probation in the hopes of achieving rehabilitation [citation], proves unable to abide by the conditions of that liberty the first time out. Allowing an offender to fail multiple grants of probation with absolute impunity under [rule 4.435(b)(1)] would discourage a court from ever reinstating probation.” (Ibid.)
Defendant urges us to reject the holding in Harris and to apply rule 4.435(b)(1) as interpreted by Colley. However, as noted above, the court in Colley did not consider the circumstances at issue in this case because there was no reinstatement of probation followed by a second revocation. “ ‘ “It is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered.” ’ ” (People v. Knoller (2007) 41 Cal.4th 139, 154-155.) In addition, the Harris decision has been good law since 1990. It is well reasoned, persuasive, and directly responsive to the issues raised in defendant’s appeal. We therefore have no reason to reject the holding in Harris, and we also have no reason to believe the trial court would have rejected it if counsel had objected and raised the issue at the time of sentencing.
Based on Harris, the trial court was entitled to consider defendant’s performance on probation from the time it was originally granted on October 2, 2006, until it was reinstated on May 7, 2007. However, the court was not entitled to consider defendant’s performance on probation after reinstatement on May 7, 2007, while she was participating in the drug court review program. Defendant participated in the drug court review program from May 7, 2007, until January 7, 2008, when her probation was revoked for the second time after she failed to appear.
Although the trial court mentioned defendant’s performance during the drug court review program as one of the factors supporting the upper term, there is no reasonable probability the trial court would have imposed a more favorable sentence if counsel objected to this during the sentencing hearing. Only a single aggravating factor is necessary to make it lawful for the trial court to impose an aggravated prison term. (See Pen. Code, § 1170, subd. (b); People v. Black (2007) 41 Cal.4th 799, 815 (Black II), citing People v. Osband (1996) 13 Cal.4th 622, 728.) Here, the trial court cited no mitigating factors and properly relied on three aggravating factors—defendant’s prior conviction, her unsatisfactory performance on parole, and her unsatisfactory performance on probation from October 2, 2006, to May 7, 2007. Thus, even if counsel’s performance was deficient for failure to object, defendant cannot show she was prejudiced. We therefore reject defendant’s ineffective assistance of counsel claim.
Cunningham
Defendant argues the trial court’s reliance on her prior conviction and her performance on parole and probation violated her constitutional right to a jury trial as set forth in the Cunningham line of cases because these factors were not admitted or found true by a jury. We disagree.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United States Supreme Court held that a criminal defendant’s right to a jury trial is violated when a sentencing scheme allows a trial court to increase a criminal penalty beyond the prescribed statutory maximum based on a fact, other than a prior conviction, which was not admitted by the defendant or found true by a jury. Later, the United States Supreme Court in Cunningham, supra, 549 U.S. 270 [127 S.Ct. 856] considered the constitutionality of California’s determinate sentencing law (DSL) in light of the holding in Apprendi.
Prior to March 30, 2007, Penal Code section 1170, subdivision (b), provided that “the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.” In Cunningham, the United States Supreme Court concluded that former section 1170, subdivision (b), violated the rule set forth in Apprendi, supra, 530 U.S. 466, to the extent it created a presumption which rendered the middle term the statutory maximum and allowed trial courts to impose an aggravated upper prison term “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, supra, 549 U.S. at p. [127 S.Ct. at p. 860], italics added.)
In response to Cunningham, the Legislature amended the DSL, effective March 30, 2007. (Stats. 2007, ch. 3, § 2; People v. Sandoval (2007) 41 Cal.4th 825, 836, fn. 2 (Sandoval).) Because of the DSL amendments, trial courts now have the discretion under Penal Code section 1170, subdivision (b), to select among the lower, middle, and upper terms specified by statute without stating ultimate facts deemed to be aggravating or mitigating under the circumstances and without weighing aggravating and mitigating circumstances. (Sandoval, at p. 847, citing former Pen. Code, § 1170, subd. (b).) Rather, “a trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions.” (Sandoval, at p. 848.) In other words, these amendments to the DSL essentially eliminated the middle term as the statutory maximum absent aggravating factors. In Sandoval, supra, at pages 845-857, our Supreme Court held it is constitutionally appropriate to apply the amended version of the DSL in all sentencing proceedings conducted after the effective date of the amendments, regardless of whether the offense was committed prior to the effective date of the amendments. We are bound by the Sandoval decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Here, the record shows defendant was sentenced on February 25, 2008, almost one year after Penal Code section 1170, subsection (b), was amended. It is therefore apparent defendant was not even sentenced under the sentencing scheme found unconstitutional by the Supreme Court in Cunningham. Her reliance on Cunningham is therefore misplaced, and she has made no argument that her constitutional right to a jury trial or any other constitutional right was violated when the trial court applied the amended version of the DSL that was in effect at the time she was sentenced. As noted above, the upper term is now the statutory maximum under the amended version of Penal Code section 1170, subdivision (b). As a result, the trial court was entitled to impose the upper term based on any significant aggravating factors unless an exception applied. The court did so by citing defendant’s prior conviction as an aggravating factor, along with her unsatisfactory performance on parole. The record demonstrates defendant’s performance on parole was unsatisfactory because she was convicted of a new offense while released on parole. In relying on these factors, the court did not violate defendant’s jury trial guarantee by engaging in constitutionally impermissible factfinding in order to impose a prison sentence beyond the prescribed statutory maximum.
Even if defendant could convince us Cunningham is relevant under the circumstances of her case, a remand for resentencing would not be necessary. In response to Cunningham, our Supreme Court in Black II, supra, 41 Cal.4th at pages 815-820, citing People v. Osband, supra, 13 Cal.4th at page 728, concluded a remand for resentencing is unnecessary where the record shows that in imposing an upper term the trial court relied on a single aggravating factor, which meets constitutional standards, such as the defendant’s criminal history, even if the court also relied on other factors. (See Black II, at p. 816 [“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”].)
Our Supreme Court in People v. Towne (2008) 44 Cal.4th 63, 82, recently confirmed that a defendant’s unsatisfactory performance on parole is a legally sufficient aggravating circumstance that can justify imposing an upper term, as long as the defendant’s record of prior convictions shows he or she was on probation or parole when he or she incurred a new conviction.
Here, the record shows defendant incurred the new conviction in this case while on parole in a prior case. As a result, the trial court imposed the upper term based on two aggravating factors that meet the constitutional standards set forth in Cunningham. Pursuant to Black II, supra, 41 Cal.4th at pages 815-820, it is constitutionally insignificant that the court also considered defendant’s poor performance on probation.
Conduct Credits
At the sentencing hearing on February 25, 2008, the trial court stated defendant was not entitled to conduct credits under Penal Code section 4019 because “she waived those as a condition of her acceptance into the drug court treatment program.” Defendant contends this was error because she is entitled to conduct credits under Penal Code section 4019 for any time she spent in custody before she began participating in the drug court treatment program on May 7, 2007. The People agree defendant is entitled to conduct credits under Penal Code section 4019 up until the time she waived them by commencing participation in the drug court treatment program on May 7, 2007.
Under Penal Code section 4019, a defendant or pretrial detainee confined in local custody may be eligible to earn credits for good conduct from the date of arrest and prior to the imposition of sentence for a felony conviction at the rate of two additional days for every four of actual custody. (Pen. Code, § 4019, subds. (a), (b), (f).) The sentencing court is responsible for calculating the number of days the defendant has been in custody before sentencing and for reflecting the total credits allowed on the abstract of judgment. (People v. Buckhalter (2001) 26 Cal.4th 20, 30-31.)
Here, the probation report indicates defendant was in local custody from the date of her arrest on September 3, 2006, until released on September 13, 2006. Defendant was then granted probation on October 2, 2006, and this initial grant of probation did not include a waiver of conduct credits under Penal Code section 4019. The probation report and the court’s minutes also indicate defendant was taken into local custody again on December 30, 2006, after a bench warrant was issued for failure to appear and for alleged probation violations. She was then released on February 13, 2007. In a “Drug Court Application and Agreement” signed January 29, 2007, defendant agreed to “waive all [Penal Code section] 4019 credits as a condition of participating in the DRUG COURT TREATMENT PROGRAM.” She was instructed by the court to begin participating in the drug court treatment program on May 7, 2007.
Based on the record and the information provided in the probation report dated February 25, 2008, defendant is eligible to earn credits under Penal Code section 4019 for the time she spent in local custody from September 3 to September 13, 2006 and from December 30, 2006, until February 13, 2007. Therefore, we will remand the case for the limited purpose of a proper calculation of credits under Penal Code section 4019 during the relevant time period prior to May 7, 2007.
DISPOSITION
The case is remanded for the limited purpose of calculating conduct credits under Penal Code section 4019 for time spent in local custody prior to May 7, 2007. The superior court is directed to determine defendant’s conduct credits earned prior to May 7, 2007, to amend its minutes accordingly, and to correct and forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is affirmed in all other respects.
We concur: HOLLENHORST, J., GAUT, J.