Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. FMB006270 & FMB006790, Bert L. Swift, Judge.
James M. Crawford, 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, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Christopher P. Beesley, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant Julie Marie Aragon challenges the upper term sentence of four years imposed in case No. FMB006270 when the trial court terminated her probation. Citing Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham), she argues the sentence violated her Sixth Amendment right to a jury trial.
FACTUAL AND PROCEDURAL BACKGROUND
On October 21, 2003, a confidential informant went to defendant’s residence and purchased methamphetamine. Police searched the residence on October 30, 2003, and defendant was arrested. Thereafter, defendant was charged in a felony complaint in case No. FMB006270 with a violation of Health and Safety Code section 11379, subdivision (a), sale of methamphetamine (the original sale case). On March 3, 2004, she pled guilty to the offense.
At a sentencing hearing held April 14, 2004, judgment was withheld, and defendant was granted supervised probation for three years subject to various terms and conditions, including drug treatment. She was also required to serve 120 days in jail. A probation report prepared at this time stated defendant was 38 years old and had no prior record of criminal conduct. The only aggravating factor cited in the report was that the offense demonstrated planning, sophistication or professionalism.
In a new felony complaint filed on June 30, 2004, case No. FMB006790, defendant was charged with grand theft in violation of Penal Code section 487, subdivision (a), and with receiving stolen property in violation of Penal Code section 496, subdivision (a) (the grand theft case). On the same date, the People petitioned the court for a revocation of defendant’s probation in the original sale case. On November 24, 2004, the court held a preliminary hearing in the grand theft case, and concluded there was enough evidence to hold defendant to answer to the new charges. However, the court found there was insufficient evidence to revoke defendant’s probation in the original sale case, and probation was continued on the original terms and conditions.
On January 5, 2005, a second petition was filed by the People seeking revocation of defendant’s probation in the original sale case. A supplemental probation report prepared at this time cited a number of reasons defendant was in violation of her probation. These reasons included her involvement in the offenses charged in the grand theft case and two positive drug tests for methamphetamine use. The probation officer recommended reinstatement of probation extended to expire on June 27, 2007, and 180 days in jail to force sobriety.
On January 19, 2005, defendant pled guilty in the grand theft case to a violation of Penal Code section 487, subdivision (a). She was sentenced to five years’ supervised probation subject to a number of terms and conditions, including drug treatment and 270 days in county jail to be served concurrently with the county jail time imposed in the original sale case. Shortly thereafter, defendant also admitted violating her probation in the original sale case. Defendant’s probation in the original sale case was therefore extended to June 27, 2007, and the conditions of her probation were modified to include 180 days in jail and completion of the Inroads Program to address her drug addiction. Defendant thereafter submitted an application for drug court, was released to drug court, and continued on probation until May 2007.
On May 21, 2007, defendant was remanded into custody for failing to report to the probation officer and a probation revocation hearing was scheduled in both cases. On June 4, 2007, she was released and continued on probation. However, on July 20, 2007, she was arrested for driving under the influence in violation of Vehicle Code section 23152, subdivision (a), “with a blood result of .19.” Defendant’s probation in the original sale and grand theft cases was therefore put on hold. The court referred the matter to the probation officer for a supplemental report and scheduled a sentencing hearing. In the supplemental report, the probation officer indicated defendant also diluted a urine sample on September 12, 2006, and on January 8, 2007, admitted using methamphetamine.
On August 27, 2007, the court held a sentencing hearing in the original sale and grand theft cases. The court revoked and terminated defendant’s probation in both cases. In the original sale case, the trial court sentenced defendant to the upper term of four years in state prison. In the grand theft case, the trial court imposed a consecutive, subordinate term of eight months in state prison.
DISCUSSION
Citing Cunningham, supra,127 S.Ct. 856, defendant argues the trial court imposed an upper term of four years in the original sale case based on aggravating facts which were not admitted or found true by a jury. As a result, defendant argues the sentence is contrary to the Supreme Court’s decision in Cunningham, so the sentence should be reversed. Defendant’s reliance on Cunningham is inapposite.
In Cunningham, the Supreme Court concluded California’s determinate sentencing law (DSL) violates a criminal defendant’s right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the extent it allows 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, 127 S.Ct. at pp. 860, 871.) However, in response to Cunningham, the Legislature amended the DSL effective March 30, 2007. (People v. Sandoval (2007) 41 Cal.4th 825, 836, fn. 2 (Sandoval).) As a result of the amendments, trial courts now have the discretion 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. (Id. at p. 847, citing Pen. Code, § 1170, subd. (c), as amended by Stats. 2007, ch. 3, § 2.) 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,” which are not relevant to the circumstances presented in this case. (Id. at p. 848.) “[T]he existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term.” (People v. Black (2007) 41 Cal.4th 799, 813.) Although broad discretion is afforded by the amended sentencing scheme, a trial court must set forth reasons for imposing the selected term, and its sentencing decision is subject to review for abuse of discretion. (Sandoval, supra, 41 Cal.4th at p. 847; Pen. Code, § 1170, subd. (c).)
These prohibitions are summarized in Penal Code section 1170, subdivision (b), and California Rules of Court, rule 4.420.
Here, defendant was sentenced in the original sale case on August 27, 2007, after the effective date of the amendments to the DSL. In Sandoval, supra, 41 Cal.4th 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.)
Defendant has not argued the trial court abused its discretion in imposing the upper term. Nor has defendant presented any viable reason why the amendments to the DSL were inappropriately applied in her case. In reaching its sentencing decision during the sentencing hearing on August 27, 2007, the trial court referred to at least one aggravating reason, which is legally sufficient to support the trial court’s decision to impose the upper term. As the trial court noted on the record, defendant committed the new offense in the grand theft case while she was on probation in the original sale case. (See Cal. Rules of Court, rule 4.421(b)(5).) We therefore cannot conclude there is a sentencing error justifying a reversal of the sentence.
Defendant contends the trial court’s only reasons for imposing the upper term were prior positive tests for methamphetamine use and the arrest for driving under the influence. We disagree. When the transcript of the sentencing hearing is read as a whole, it is apparent that the trial court’s reasons for imposing the upper term included the new offense in the grand theft case, which was committed while she was on probation in the original sale case.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST J., KING J.