Opinion
NOT TO BE PUBLISHED
San Mateo County, Super. Ct. No. 061217A
Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant Silvia P. Romero appeals from her prison sentence, alleging: (1) the imposition of the aggravated term for the principal offense violated her constitutional rights under Cunnigham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham); (2) the court erred in failing to state reasons for the imposition of consecutive terms, and (3) the court improperly imposed a five-year enhancement under Penal Code section 1192.7. We reject defendant’s contentions, except insofar as she correctly points out that the abstract of judgment states the wrong code section for the imposition of the sentencing enhancement. We will affirm the judgment and direct the correction of the abstract.
The facts are not in dispute and are drawn from the probation report.
On November 26, 2005, defendant was the driver of a car that collided with a telephone pole. Her two passengers were killed: one instantly; the other several months later. Witnesses reported that defendant appeared to be intoxicated and told them not to call the police, before she fled the scene on foot. Twelve hours later, she was found asleep in a different vehicle. She was in possession of a crack pipe and cocaine. Tests revealed a blood alcohol level of .11 percent, cocaine, and marijuana in her system.
Procedural History
Defendant pled no contest to two counts of felony vehicular manslaughter (Pen. Code, § 192, subd. (c)(1)), and admitted that both counts were serious felonies in light of the infliction of great bodily injury (Pen. Code, § 1192.7, subd. (c)(8)). As to one of those counts, she admitted she had fled the scene of the accident (Veh. Code, § 20001, subd. (c)). The remaining counts were dismissed. Defendant orally acknowledged that she could be sentenced up to the maximum. The waiver of rights form, signed by defendant, correctly described that maximum as 12 years and 4 months in prison. Defendant also admitted she was in violation of her two felony probations.
Defendant’s Criminal History
In April 2002, defendant was arrested after fleeing the scene of an accident in which she had driven onto a sidewalk and into a fence. She was convicted of driving under the influence and placed on probation. In June 2002, defendant was arrested after her car crashed into a yard and hit a tree. She was again convicted of driving under the influence of alcohol and placed on probation. She was terminated from the Multiple Offender Program for excessive absences. At the time of the current offenses, her driving privilege had been revoked. In July 2004, defendant was arrested and convicted for possessing cocaine in her vehicle. Her probation for that offense was repeatedly violated for failure to enroll in and/or complete treatment programs, as well as failure to report to the probation department, and new arrests. In August 2005, defendant was again convicted of possessing cocaine. At the time of the present offenses, she was on probation in both possession cases; her misdemeanor probations had been terminated earlier in 2005.
The probation report in this case listed the following aggravating circumstances, pursuant to California Rules of Court, rule 4.421 : defendant’s criminal convictions are numerous and increasing in seriousness; she was on two grants of felony probation at the time of the present offense, and her performance on probation had been unsatisfactory. No mitigating circumstances were found, per rule 4.423.
All further references to rules are to the California Rules of Court.
The Trial Court’s Ruling
Prior to pronouncing sentence, the trial court found that no mitigating circumstances existed. As to aggravating factors, the court found that defendant was on two grants of felony probation at the time of the current offense and that her performance on probation had been poor. The court also found that the crime involved great violence and that defendant’s actions after the accident were “totally callous and without concern for anyone but herself.” The court also commented: “I don’t think it’s a total coincidence that she had DUI’s, and . . . left the scene of an accident and was later found passed out in the car. She had controlled substances in her system at the time also. [¶] This is a totally aggravated case. I find no reason to have any sympathy for or compassion for Ms. Romero.”
The court then selected the aggravated term of six years in prison for one count of vehicular manslaughter and imposed the five-year enhancement for “the hit and run special allegation” consecutively. The court also imposed one-third the midterm, or one year four months, for the second count of vehicular manslaughter consecutively. The total prison sentence was 12 years and 4 months.
The court’s minutes and the abstract of judgment incorrectly state that the five-year enhancement was imposed pursuant to Penal Code, section 1192.7, subdivision (c)(8), rather than Vehicle Code, section 20001, subdivision (c).
Analysis
1. The Aggravated Term
“Cunningham concluded that the DSL [Determinate Sentencing Law] violates a defendant’s right to jury trial because ‘under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.’ [Citation.]” (People v. Black (2007) 41 Cal.4th 799, 809.) However, the “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.” (Id. at p. 816.) Here, defendant admitted that she was in violation of two felony probations at the time of the current offenses. Per rule 4.421(b)(4), that a defendant was on probation at the time of the current offense is an aggravating circumstance. In light of the holding in Black, we need go no further. The aggravated term was within the range contemplated by defendant at the time of her change of plea and within the range made possible by her admission of two felony probation violations.
Even if defendant had not admitted the probation violations, we would find no error. Our Supreme Court in People v. McGee (2006) 38 Cal.4th 682, 709, noted the distinction between sentence enhancements which require factfinding related to the circumstances of the current offense (traditionally, a jury function) and those pertaining to prior convictions, which ordinarily require only a review of court records (traditionally, a judicial function). We agree with the analysis of the court in People v. Morton (2008) 159 Cal.App.4th 239, 251, that a defendant’s parole status, as an aggravating sentencing factor, may be determined by the court, without a jury finding, under the rationale of McGee. We see no distinction between a defendant’s parole status and, as is relevant here, her probation status.
2. The Consecutive Term
Defendant contends the court erred when it failed to state a reason for imposing a consecutive sentence for the second count of vehicular manslaughter. Although defendant objected to the imposition of the aggravated term, she did not object to the trial court’s failure to state reasons for the imposition of the aggravated term. The court’s failure to do so is the type of error that might have been easily corrected had one of the parties drawn the court’s attention to it. Consequently, the claim is waived. (People v. Neal (1993) 19 Cal.App.4th 1114, 1124.)
3. The Five-Year Enhancement
As noted above, at sentencing, the court indicated it was imposing the five-year enhancement for “the hit and run special allegation,” an obvious reference to the enhancement alleged under Vehicle Code section 20001, subdivision (c), and admitted by defendant. The court’s minutes and the abstract of judgment incorrectly show the enhancement imposed under Penal Code section 1192.7, subdivision (c)(8), the serious felony allegation also admitted by defendant, which does not provide for a sentence enhancement. In light of this error, defendant contends the enhancement should be stricken. We disagree. However, we remand for the limited purpose of correcting the abstract of judgment. The judgment is otherwise affirmed.
We concur: JONES, P. J., NEEDHAM, J.