Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD208318, Bradford L. Andrews, Judge.
HUFFMAN, J.
On August 23, 2007, Phoukham Aphaivong pled guilty to one count of burglary (Pen. Code, § 459). He was granted probation subject to 240 days local custody and other terms and conditions. On March 25, 2008, following an evidentiary hearing the court revoked Aphaivong's probation. He was sentenced to the upper term of three years in prison.
Aphaivong appeals contending the upper term sentence violates his right to jury trial as defined in Blakely v. Washington (2004) 542 U.S. 296 and Cunningham v. California (2007) 549 U.S. 270. In the alternative, Aphaivong contends the trial court erred in relying on his postconviction failure to comply with probation as an aggravating factor in violation of the California Rules of Court. We will reject his contentions because Aphaivong waived his so-called "Blakely Rights" when he pled guilty in the present case. Thus he was eligible for an upper term sentence (People v. Black (2007) 41 Cal.4th 799, 812) when he was sentenced after the revocation of his probation, and the trial court stated adequate reasons for the sentence imposed.
All further references to rules are to the California Rules of Court.
DISCUSSION
When Aphaivong entered his guilty plea he signed and initialed a change of plea form, which includes the following waiver provision:
"(Blakely Waiver) Except where a prison term has been set by stipulation of the parties, I agree that the sentencing judge may determine the existence or non-existence of any aggravating facts which may be used to increase my sentence on any count or allegation above the middle term, either at the initial sentencing or at any future sentencing in the event my probation is revoked." (Bold in original.)
Aphaivong does not challenge his guilty plea, which includes the waiver provision in the change of plea form, therefore we are able to consider it in our analysis of his current contentions.
Cunningham v. California, supra, 549 U.S. 270 reviewed California's determinate sentencing law. The court concluded a defendant would have a right to jury trial on the existence of any fact, not included in the elements of the offense, which would make the person eligible for an increased punishment beyond the statutory term for the offense. The court determined the selection of the upper term in the California sentencing scheme was such an increase in punishment thus a defendant had a right to a jury trial on the truth of any fact justifying that term, unless the right is waived by the defendant.
Our Supreme Court has determined that once a person is lawfully eligible for an upper term sentence, any additional fact finding done by the court in order to select the appropriate term of imprisonment is not subject to the right to a jury trial. (People v. Black, supra, 41 Cal.4th at p. 820.)
Aphaivong was rendered eligible for an upper term sentence in this case because he waived his right under Blakely to a jury trial on any aggravating facts. Such unchallenged waiver is sufficient to give up his Sixth Amendment jury trial right on the sentencing issues. (People v. French (2008) 43 Cal.4th 36, 48, fn. 6.)
Having determined Aphaivong was eligible for an upper term sentence, we turn to the sentencing decision. Aphaivong contends the trial court erred in relying on his poor performance on his grant of probation in this case as a basis for the upper term. While we agree a court cannot increase a sentence based on postconviction behavior (rule 4.435(b)(1), the trial court relied on other, appropriate facts to support its decision.
Aphaivong had an extensive juvenile delinquency history, including a commitment to the California Youth Authority (CYA). He also had several convictions as an adult and performed poorly on probation. The sentencing court carefully reviewed the supplemental probation report and all of Aphaivong's prior criminal conduct. There are adequate reasons set forth on the record to justify the trial court's sentencing decision.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J. McDONALD, J.