Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Bert L. Swift, Judge. Super.Ct.No. FMB006880.
Theresa Osterman Stevenson, 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, and Ronald A. Jakob and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION ON REMAND
King J.
Defendant pled no contest to one count of transportation of methamphetamine. (Health & Saf. Code, § 11379, subd. (a).) In return, the court placed her on 36 months of Proposition 36 probation. After the filing of four subsequent petitions for revocation of probation containing various and repeated allegations of probation violations, all of which defendant admitted, the court revoked her probation and sentenced her to the aggravated term of four years in state prison.
All further statutory references are to the Health and Safety Code unless otherwise indicated.
In our original opinion filed on October 31, 2007, we found defendant’s contention that she was entitled to a jury trial on the facts upon which the court based imposition of the upper term not cognizable on appeal, because she failed to request and procure a certificate of probable cause. (Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham).) The case is before us again on transfer from the California Supreme Court with directions to vacate our original decision and reconsider it in light of its subsequent decisions in People v. Towne (2008) 44 Cal.4th 63 (Towne) and People v. French (2008) 43 Cal.4th 36 (French). In accordance with those directions, we have vacated and reconsidered our earlier decision. Pursuant to French, we now reach the merits of defendant’s Cunningham argument; nevertheless, we find it lacking because the factors utilized by the sentencing court in electing to impose the upper term were admitted by defendant, a well-recognized exception to the Sixth Amendment’s requirement of a jury trial determination on those factors. Moreover, even to the extent that the court committed any error in relying on those facts, we find any error harmless. We further reaffirm our previous determination that the court did not abuse its discretion in imposing the upper term based on circumstances occurring after the court’s initial grant of probation. Therefore, we, yet again, affirm the judgment below.
I. FACTS AND PROCEDURAL HISTORY
On July 26, 2004, an officer pulled defendant over for a traffic infraction; she exhibited indications of intoxication. She admitted to the use of methamphetamine two days earlier and to possession of drugs. In her purse the officer discovered four baggies of methamphetamine, two glass methamphetamine pipes, and a pay-owe sheet. The People charged defendant with transportation of methamphetamine (count 1—§ 11379, subd. (a)), possession of methamphetamine for sale (count 2—§ 11378), and being under the influence of methamphetamine (count 3—§ 11550, subd. (a)).
Defendant pled no contest to count 1. In return, the court dismissed counts 2 and 3 and placed her on Proposition 36 probation for a term of three years. The Proposition 36 presentence probation officer’s report listed a number of mitigating factors, but no aggravating factors. A later prepared supplemental probation officer’s report indicates that the Proposition 36 presentence probation officer’s report indicated that the mitigated term of imprisonment would be appropriate; however, this is nowhere actually reflected in that report. At sentencing, the court made no findings regarding mitigating or aggravating factors. As part of her plea agreement, defendant acknowledged that revocation of her Proposition 36 probation could result in the imposition of a prison sentence of up to four years.
On November 18, 2004, the People filed a petition for revocation of defendant’s probation, alleging she violated the terms of her probation requiring her to neither use nor possess any controlled substance (term 9) and to enroll in a drug treatment program (term 20). Defendant’s outpatient treatment program terminated her when she tested positive for methamphetamine. On November 2, 2004, the People charged defendant in a separate misdemeanor case with possession of a controlled substance (§ 11377, subd. (a)) and possession of drug paraphernalia (§ 11364). The case was assigned case No. MWV094565. It is not at all clear from the record whether these charges related to the grounds alleged in the petition to revoke defendant’s probation. Defendant admitted the probation violations.
On January 13, 2005, the People filed a second petition to revoke probation, alleging defendant violated probation when she left the court-ordered residential treatment program. On April 8, 2005, the People filed an amended second petition to revoke defendant’s probation. The People alleged in the latter petition that defendant had violated term 9 of her probation conditions when she tested positive for methamphetamine on March 30, 2005, and admitted to using it three days earlier. Defendant admitted the allegations in both petitions. The court revoked defendant’s probation and reinstated it, noting that “the next one is on your way to state prison.”
On May 26, 2005, defendant pled guilty to both misdemeanor counts in case No. MWV094565. That court granted defendant 24 months of probation.
On September 1, 2005, the People filed a third petition to revoke defendant’s probation. Defendant’s residential drug treatment program terminated her on August 16, 2005, when she failed to spend several nights there and tested positive for methamphetamine. Defendant also failed to report to her probation officer after being evicted. Defendant appears to have picked up a least one additional misdemeanor charge (case No. MMB009959); however, the record lacks any information regarding this other than the case number. Defendant admitted the violations of probation. On September 22, 2005, the court extended defendant’s probation on modified terms and conditions.
Defendant tested positive for methamphetamine on September 2, 2005, and September 21, 2005. On December 29, 2005, a bench warrant was issued for defendant’s arrest. On July 24, 2006, a 24-hour in-custody sanction was imposed upon defendant, though the record fails to specify why. On December 4, 2006, defendant was found to be in noncompliance with her probation conditions in case No. MWV094565 and was ordered to serve 30 days in county jail.
On November 4, 2006, officers witnessed defendant at a local bar, which constituted a violation of term 12 of her probation conditions requiring that she neither possess nor consume alcoholic beverages, nor enter places in which such beverages are the principal item of sale. On December 11, 2006, defendant’s court-ordered drug treatment program terminated her for twice testing positive for methamphetamine, failing to complete her community service hours, and admitting to the consumption of alcohol. The probation officer’s report reflects that the presentence report indicated that the mitigated prison term would be appropriate, but recommended imposition of an aggravated term based on her subsequent conduct. The drug court determined that defendant was no longer amenable to its treatment program. The trial court, over defendant’s objection, followed the probation officer’s recommendation; it revoked probation, imposed the upper term of four years in the felony case, and sentenced her to 180 days concurrent on the misdemeanor case. Its sole basis for doing so was the fact defendant had three prior violations of probation.
On December 20, 2006, defendant filed separate notices of appeal in both cases, Nos. FMB006880 and MWV094565, checking the boxes indicating she was challenging “[a] contested violation of probation.” In neither case did she request a certificate of probable cause; although, in case No. FMB006880, she indicated an additional basis for the appeal: “Imposition of aggravated sentence. Original probation report stated mitigating factors outweighed aggravating.” Recognizing that this court had jurisdiction over the felony case, the Appellate Division of the Superior Court certified case No. MWV094565 for transfer to this court in order to secure “uniformity of decision.” (Cal. Rules of Court, rules 8.1002, 8.1005, 8.1008.) This court assigned that case appellate case No. E043099, ordered it transferred here, and consolidated it with the felony appeal in case No. E042070, designating the latter as the master file.
II. DISCUSSION
A. The Sentencing Court’s Imposition of the Aggravated Term for Defendant’s Offense Was Properly Based on Factors Admitted By Defendant
In her opening brief, defendant claimed the trial court erred in imposing the upper term on count 1 and that the matter must be remanded for resentencing in light of the United States Supreme Court’s then recent decision in Cunningham (imposition of upper term sentence based on facts found by judge under California’s determinate sentencing law (DSL) violates Sixth and Fourteenth Amendment right to jury trial).
“[T]he Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum 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].) In Cunningham, the United States Supreme Court held that by placing sentence-elevating factfinding within the trial judge’s province, California’s DSL violates a criminal defendant’s right to a jury trial safeguarded by the Sixth and Fourteenth Amendments to the federal Constitution. (Ibid.) The Cunningham court explained that because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence rather than by proof beyond a reasonable doubt, the California DSL violates the bright-line rule in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) that any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868].) Quoting Blakely v. Washington (2004) 542 U.S. 296 (Blakely) for the proposition that “‘[t]he “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant,’” the Cunningham court concluded that “[i]n accord with Blakely, therefore, the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868].)
It is readily apparent here that the trial court imposed the upper term based on facts not found by a jury. Indeed, the trial court’s only stated reason for imposing the aggravated term was defendant’s “three violations of probation.” While those violations of probation may have resulted in the above discussed misdemeanor convictions, thus qualifying under the prior convictions exception to Cunningham’s dictates, nothing in the record affirmatively demonstrates that connection. Nonetheless, the People countered in their original responsive brief that defendant’s failure to obtain a certificate of probable cause rendered the issue noncognizable on appeal.
Penal Code section 1237.5 provides, in relevant part, that “[n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . . except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”
In French, supra, 43 Cal.4th 36, the California Supreme Court concluded that a certificate of probable cause is not required to raise a Cunningham issue on an appeal from the imposition of the upper term sentence after a plea of no contest. (French, supra, at pp. 45-46.) This is because a challenge to the imposition of the aggravated term is not an attack upon the validity of the plea agreement, but rather, is a challenge to the court’s individualized sentencing discretion. (Ibid.) Hence, Cunningham issues are cognizable on an appeal from a plea despite a defendant’s failure to request and procure a certificate of probable cause.
Nevertheless, “if a single aggravating factor has been established in a manner consistent with Blakely and Cunningham—by the jury’s verdict, the defendant’s admissions, or the fact of a prior conviction—the imposition by the trial court of the upper term does not violate the defendant’s Sixth Amendment right to a jury trial, regardless of whether the trial court considered other aggravating circumstances in deciding to impose the upper term.” (Towne, supra, 44 Cal.4th at p. 75, italics added.) Here, defendant admitted the very factors the sentencing court utilized in justifying imposition of the upper term: that defendant had thrice violated the terms of her previously-imposed probation.
It is true that the court in Towne held that, “In circumstances in which a finding of poor performance on probation or parole can be established only by facts other than the defendant’s prior convictions, we conclude that the right to a jury trial applies to such factual determinations.” (Towne, supra, 44 Cal.4th at pp. 82-83.) Nonetheless, this was so only where the prior unsatisfactory performance on probation was based on “facts” contained within a probation officer’s report which may be open to dispute (id. at pp. 75, 82), or where the finding was made at a contested revocation proceeding which did not afford the defendant the full panoply of rights accorded to a defendant at a criminal trial (id. at 83). Here, while defendant’s probation violations were the subject of several probation officers’ reports, defendant admitted these violations in open court without contention. Furthermore, defendant’s violations of the conditions of her probation comes under the Cunningham exemption for admissions rather than prior convictions.
Even to the extent that the court’s reliance on defendant’s probation violations erroneously formed the basis for its imposition of the upper term, such error was harmless beyond a reasonable doubt. Cunningham “error does not require reversal if the reviewing court determines it was harmless beyond a reasonable doubt, applying the test set forth in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824]. [Citation.] In the context of Cunningham error, that test requires us to determine ‘whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.’ [Citation.] If we conclude, beyond a reasonable doubt, that a ‘jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.’ [Citation.] The failure to submit a sentencing factor to a jury may be found harmless if the evidence supporting that factor is overwhelming and uncontested, and there is no ‘evidence that could rationally lead to a contrary finding.’ [Citations.]” (French, supra, 43 Cal.4th at pp. 52-53.) Here, defendant’s numerous violations of her probation were uncontested. Indeed, she admitted them all. Thus, if the question of defendant’s violations of her probation had been submitted to a jury, it would unquestionably have found those violations true beyond a reasonable doubt.
B. The Trial Court Did Not Abuse Its Discretion in Imposing the Upper Term Based on Circumstances Occurring After Its Initial Grant of Probation
California Rules of Court, rule 4.435(b)(1) provides that when a trial court imposes sentence after revoking probation, “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 or in deciding whether to strike the additional punishment for enhancements charged and found.” “Rule 435(b)(1) of the California Rules of Court clearly prohibits the superior court from considering events subsequent to the grant of probation when determining the length of a prison term upon revocation of probation.” (People v. Goldberg (1983) 148 Cal.App.3d 1160, 1163, fn. 2.)
Nonetheless, the court in People v. Harris (1990) 226 Cal.App.3d 141 “conclude[d] that the rule allows consideration of circumstances preceding a reinstatement of probation. The rule bars considering events subsequent to ‘the time probation was granted . . . .’ It does not specifically address a situation where, as here, probation is granted, revoked and then, as part of a negotiated disposition, reinstated on modified terms. However, reinstating probation on modified terms appears to be a new grant of probation within the meaning of the rules. . . . Thus, nothing in the language of the rules bars considering events predating a reinstatement of probation.” (Id. at pp. 145-146.)
In the instant case, the trial court revoked and reinstated defendant’s probation on April 8, 2005, based on her admission of the allegations in the first, second, and amended second petitions for revocation of probation. The allegations in those three petitions included a total number of four violations of defendant’s probation conditions. Thus, to the extent the trial court imposed the upper term based on defendant’s conduct, which provided the basis for the first, second, and amended second petitions for revocation of probation, the trial court acted well within its discretion.
The record is not crystal clear as to which three violations the court was using for purposes of imposing the aggravated term.
Defendant notes that while the reporter’s transcript indicates that the trial court revoked and reinstated probation, the minute order for that hearing reflects that the court found defendant’s probation “violated” and “continued.” Thus, defendant maintains her probation was not revoked and reinstated. Hence, the court committed error in relying on defendant’s conduct between the time of the initial grant of probation and the court’s “continu[ance]” of it. Contrary to defendant’s contention, the word “continued” does not appear in the minute order for the April 8, 2005, hearing. Rather, the minute order reads “continue with fast track requirements.” It in no way directly or contextually reflects action regarding defendant’s status on probation; rather, it appears to implicate the terms of her probation. Regardless, “[t]he record of the oral pronouncement of the court controls over the clerk’s minute order . . . .” (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.) Thus, to the extent that the court relied on the circumstances of defendant’s conduct subsequent to its initial grant of probation and prior to its revocation and reinstatement of probation, the court committed no error.
Nonetheless, defendant maintains that the trial court’s reference to defendant’s three violations of probation necessarily included the allegations contained in the third petition for revocation filed on September 1, 2005. Thus, the court’s reliance on defendant’s conduct between the initial revocation of probation on April 8, 2005, and the filing of the third petition for revocation of probation on September 1, 2005, constituted an abuse of discretion. This is because the court did not revoke defendant’s probation at the hearing on the third petition for revocation of probation; rather, it merely extended her probation on modified terms and conditions. The court in People v. Harris, supra, 226 Cal.App.3d 141 did make a distinction between revocation of probation and continuance or extension of probation on modified terms when considering the propriety of a trial court’s reliance upon circumstances occurring after the initial grant of probation. (Id. at pp. 145-146.) Nevertheless, we find any such error to be harmless. (People v. Downey (2000) 82 Cal.App.4th 899, 917.) Defendant’s admitted conduct between the date of the initial grant of probation and the court’s revocation and reinstatement of her probation on April 8, 2005, constituted a sufficient basis for imposing the upper term. This behavior which, again, defendant admitted, included two positive drug tests, possession of a controlled substance, possession of drug paraphernalia, and leaving her court-ordered residential treatment program without permission. It is not reasonably probable that a more favorable result would have obtained if the trial court did not consider the circumstances which occurred between April 8, 2005, and September 1, 2005, to the extent that it even did so. (Ibid.)
III. DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst Acting P.J. Richli J.