Opinion
E067332
04-04-2018
THE PEOPLE, Plaintiff and Respondent, v. LEON DOWD, Defendant and Appellant.
Kent D. Young, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FMB1400486) OPINION APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez, Judge. Affirmed. Kent D. Young, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Elizabeth M. Kuchar, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
In October 2014, defendant and appellant Leon Dowd pled no contest to felony vandalism (Pen. Code, § 594, subd. (a)) and admitted he had suffered one prior prison term (§ 667.5, subd. (b)). In return, the remaining allegations were dismissed and defendant was placed on formal probation for a period of 36 months on various terms and conditions of probation.
All future statutory references are to the Penal Code unless otherwise stated.
Defendant subsequently violated probation, and in April 2015, admitted to violating the terms of his probation. The trial court reinstated defendant on probation in a drug court program with modified terms.
In October 2016, the trial court received an email from defendant's substance abuse counselor regarding defendant's failure to comply with the terms of the drug court program by missing a scheduled drug test. After a hearing to address the allegations, defendant admitted missing his most recent drug test and attempted to justify his noncompliance. At a subsequent hearing, the trial court noted defendant waived his right to a Vickers hearing, revoked defendant's probation, and sentenced defendant to a total term of four years in state prison.
(People v. Vickers (1972) 8 Cal.3d 451 (Vickers).)
On appeal, defendant contends (1) the trial court erred by denying him an evidentiary hearing on the alleged probation violations pursuant to Vickers; (2) the trial court violated his due process right to confrontation by relying on hearsay at the probation revocation hearing; (3) the trial court erred in denying him custody credits under section 4019; and (4) the trial court's imposition of the upper term was based on facts occurring after reinstatement of probation in violation of California Rules of Court rule 4.435(b)(1). We reject defendant's contentions and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
On September 30, 2014, an information was filed charging defendant with one count of residential burglary (§ 459). The information further alleged that defendant had suffered five prior prison terms (§ 667.5, subd. (b)).
On October 31, 2014, the People amended the information to add another count for felony vandalism (§ 594, subd. (a)). Thereafter, pursuant to a negotiated plea agreement, defendant pled no contest to the added count of felony vandalism, and stipulated the damage was over $950. Defendant also admitted to suffering one prior prison term. In return, the residential burglary charge and the remaining prior prison term allegations were dismissed. The parties stipulated to the preliminary hearing transcript as the factual basis for the plea. Defendant waived his right to a presentence probation report and requested immediate sentencing. The trial court thereafter placed defendant on probation for a period of three years on various terms and conditions and awarded defendant presentence custody credits pursuant to section 4019.
On April 2, 2015, defendant signed a "Drug Court Application and Agreement" (Agreement) and placed his initials next to the box, stating: "(m) I waive the requirement for Probation to file a formal Petition to Revoke probation, and a right to a Probation Violation Hearing (Vickers's Hearing) on any violations that may occur while I am on Drug Court Probation." Defendant also initialed the boxes indicating he understood that by entering into the Agreement, he would be waiving his constitutional rights, and that no one had forced him to enter into the drug court treatment program. Defendant also initialed the boxes indicating he read and understood English and that he had sufficient time to read his rights and the Agreement. In addition, defendant placed his initials next to the box noting, "I also waive all P.C. 4019 credits as a condition of participating in the DRUG COURT TREATMENT PROGRAM." On that same day, defendant also signed the Drug Court Terms and Conditions of Probation and accepted term 001A, which provides: ". . . I will NOT receive any 4019 conduct credits prior to today or for any time I serve in custody while in the drug court treatment program . . . ." Defendant signed and dated both documents. Furthermore, in the Drug Court Terms and Conditions of Probation document, defendant acknowledged that he had read, understood, agreed to, and waived "any further hearing regarding, all the terms and conditions of probation listed above, and all the court's findings and orders, including the fines, fees, reimbursements, and costs listed above," and that he had also waived "having the terms and conditions of probation, findings, and orders read aloud in open court."
On April 28, 2015, defendant waived his right to a Vickers hearing and admitted to violating probation. The trial court thereafter reinstated defendant on probation on its original terms and conditions with the requirement that defendant attend Narcotics Anonymous/Alcoholics Anonymous (NA/AA) meetings as directed by his probation officer and that defendant participate in the drug court rehabilitation program. Defendant accepted the modification of his terms and conditions of probation.
On October 3, 2016, defendant's substance abuse counselor notified the court via email of defendant's noncompliance with his probationary terms for failing to report to his drug testing on multiple occasions, testing positive for methamphetamine, and driving on a suspended driver's license. The email detailed defendant's history of noncompliance as follows: defendant tested positive for methamphetamine on July 24, 2015 and February 1, 2016; defendant failed to report for drug testing on April 24 and 29 and September 30, 2016; and defendant was remanded into custody for driving on a suspended license on August 8, 2016.
A hearing on defendant's failure to comply with his drug court probationary terms was held on October 4, 2016. At that time, defendant informed the court that he "just forgot" to drug test. He also stated that he "forget[s] things" and that the person who used to help him was no longer in his life. The court responded that there was "something more going on with [defendant]," and that the defendant was "walking a very fine line." The court further informed defendant that he needed to get back on his drug program and that defendant was "pushing back" for some reason and having difficulty with his addiction. Defendant explained that his ex-girlfriend was trying to "sabotage" him. The court believed there was more than "just this relationship that's gone bad," and remanded defendant into custody for failing to comply with the terms of his drug court program. The court then scheduled a drug court hearing for October 17, 2016, explaining, "if the team thinks that you deserve another opportunity at drug court, you'll be given another opportunity."
At the October 17, 2016 hearing, the court found defendant to be in violation of the terms of his probation. The court stated: "[Defendant], the court has determined that you are no longer eligible for drug court. You have now missed three tests. You've had two positive tests. You were sanctioned while in drug court for driving on a suspended license. It's been reported to the court that you've continued association with Anita S[.], who you were directed to have no contact with. And for all those reasons, the court is now determining that you're no longer eligible for continued drug court participation. You previously waived your right to a Vickers hearing as to whether or not you violate probation, you don't have a right to a Vickers hearing. You have waived that right coming in to drug court." The court indicated defendant's maximum exposure was four years in state prison, consisting of the upper term of three years for the felony vandalism charge, plus one year for the prior prison term.
Defense counsel requested defendant be sentenced to two years in state prison, explaining: "I would ask the Court to take into consideration that though [defendant] has now been terminated from drug court and did indeed apparently violate the terms of drug court, he, nevertheless, did I believe in good faith enter into the drug court program. He attempted and failed to complete. I'd ask the Court to consider the mid term of 2 years striking the 1-year prison enhancement." The prosecutor argued defendant should be sentenced to the maximum sentence of four years, explaining: "Okay. I would like to point out to the Court that [defendant] pled in October of 2014. He did initial the Harvey waiver and that was in contribution for the People dismissed the residential burglary charge . . . that the Information had indicated. And the People also did dismiss four other prison priors that [defendant] had suffered. He has a lengthy criminal history, and he was given an opportunity on probation and failed on that and then came into drug court. And he's been given multiple opportunities in drug court. And I would ask for the aggravated. I think it is appropriate. Submit."
(People v. Harvey (1979) 25 Cal.3d 754, 757-758 (Harvey) [a Harvey waiver allows a trial court to consider dismissed counts and allegations for purposes of sentencing].)
The trial court revoked defendant's probation and sentenced defendant to four years in state prison with 137 actual days of credit for time served. The court did not award defendant any conduct credits pursuant to section 4019, stating: "[Defendant] is not entitled to any 4019 credits through today's date. He will be entitled to 4019 credits starting after today's date. There will be no supervision period thereafter. [¶] After you've served your time, you will have completed your sentence."
The clerk's minute order also indicates defendant waived his section 4019 credits.
On November 29, 2016, defendant filed a notice of appeal and a request for a certificate of probable cause. Defendant's request for a certificate of probable cause was denied. Appellate counsel filed an amended notice of appeal on December 13, 2016.
III
DISCUSSION
A. Waiver of Vickers Hearing
Defendant contends he was denied his due process rights to notice, to present evidence, and to confront the evidence against him because the trial court revoked his probation without affording him a Vickers evidentiary hearing. He claims there is no evidence in the record of such a waiver, and even if there was, it could not possibly be valid because one cannot knowingly and intelligently waive an evidentiary hearing for future probation violations.
Probationers are entitled to due process protections prior to revocation, including a written notice of the claimed probation violation; disclosure of evidence against them; an opportunity to be heard in person, present evidence, and cross-examine adverse witnesses; as well as a neutral tribunal and a statement of reasons for revoking probation. (Morrissey v. Brewer (1972) 408 U.S. 471, 489; Vickers, supra, 8 Cal.3d at pp. 457-459; see In re Moss (1985) 175 Cal.App.3d 913, 929 (Moss).) However, probationers are not entitled to "all the procedural safeguards of a criminal trial," and personal waivers of the procedural rights are not required. (People v. Abrams (2007) 158 Cal.App.4th 396, 400 (Abrams); People v. Dale (1973) 36 Cal.App.3d 191, 195 (Dale).) A probationer's failure to object to the procedures used, and the conduct of his or her attorney, can indicate acquiescence sufficient to effectuate a waiver. (Ibid.; see People v. Martin (1992) 3 Cal.App.4th 482, 486 (Martin).)
A probation revocation proceeding violates due process if it is fundamentally unfair. (People v. Eckley (2004) 123 Cal.App.4th 1072, 1080.) "[S]ome flexibility in the manner in which due process guarantees are met is acceptable." (People v. Felix (1986) 178 Cal.App.3d 1168, 1171.) The court in Dale concluded that the probationer had waived his right to a contested probation revocation hearing through the conduct of his counsel "in submitting an alleged violation of probation upon the probation report," and the defendant's "acquiesc[ence] by his silence . . . ." (Dale, supra, 36 Cal.App.3d at p. 195.) In Martin, the court concluded that the defendant had "waived his right to insist on a revocation hearing by filing a statement in mitigation which acknowledged that he would be sentenced . . . and failing to object at the sentencing hearing either to the sentencing procedure or to the grounds for revocation." (Martin, supra, 3 Cal.App.4th at p. 486.)
In addition, a probationer may waive his or her Vickers rights. (Moss, supra, 175 Cal.App.3d at p. 930.) "The voluntariness of a waiver is a question of law which we review de novo. [Citation.] To make this determination, we examine the particular facts and circumstances surrounding the case, including the defendant's background, experience and conduct. [Citation.]" (People v. Vargas (1993) 13 Cal.App.4th 1653, 1660 (Vargas).)
Here, defendant expressly waived his right to a Vickers hearing for any violations that may occur during his drug court treatment program. On April 2, 2015, defendant signed the Agreement and placed his initials next to the box, stating: "(m) I waive the requirement for Probation to file a formal Petition to Revoke probation, and a right to a Probation Violation Hearing (Vickers's Hearing) on any violations that may occur while I am on Drug Court Probation." Defendant also expressly waived his constitutional rights, including his right to confront and cross-examine any witnesses called to testify.
Furthermore, the facts and circumstances surrounding the instant case constitute sufficient evidence that defendant voluntarily and intelligently waived his right to a Vickers probation revocation hearing, as well as his constitutional rights. Defendant wanted to participate in the drug court treatment program in lieu of custody after he violated probation in April 2015. As such, the trial court reinstated defendant on probation in the drug court treatment program to allow him to participate. Defendant initialed and signed the Agreement on April 2, 2015. The Agreement contained a provision stating that defendant waived the requirement for the probation department to file a formal petition to revoke probation, as well as his right to a probation violation hearing. The Agreement further advised defendant that by entering into the Agreement defendant would be waiving his constitutional rights, including "the right to confront and cross-examine any witnesses called to testify against me at those hearings" and "the right to present evidence and witnesses." Defendant initialed the boxes next to each of the provisions, including the final provision stating that he could read and understand English, that he had sufficient time to read the Agreement, and that he placed his initials in each box to signify that he understood and adopted as his own the statements contained in the Agreement.
The written waiver of the right to a Vickers hearing, including his rights to confront and cross-examine witnesses and present evidence and witnesses, demonstrates that defendant was sufficiently informed of these rights to knowingly and intelligently waive them. (See Vargas, supra, 13 Cal.App.4th at p. 1661.) It would defy common sense to hold that defendant, who was represented by able counsel, did not knowingly and voluntarily waive his rights to a Vickers hearing and to confront and cross-examine any witnesses when he signed the express waiver. If a represented criminal defendant wants to establish that his attorney inadequately explained what they both signed, he will ordinarily need to bring in evidence outside the appellate record. A petition for writ of habeas corpus would be an appropriate method of raising such a contention. Defendant apparently has not filed such petition.
The clerk's minute order dated April 28, 2015, specifically indicates that on April 28, 2015, defendant waived his right to a Vickers hearing and admitted violating probation. The trial court then reinstated defendant on probation with the additional condition that defendant attend NA/AA meetings and that defendant participate in the drug court program. At the hearing on October 17, 2016, the court reiterated that defendant was not entitled to a Vickers hearing because he had "waived that right coming in to drug court." Defendant did not object to the court's statement he was not entitled to a Vickers hearing because he had waived that right.
Moreover, after the trial court received an email on October 3, 2016, regarding defendant's noncompliance with his drug court program, the trial court held a hearing on October 4, 2016. At that hearing, defendant was present and represented by counsel. The sole issue discussed at that hearing was defendant's history of noncompliance, and in particular, his failure to report for his recent drug test on September 30, 2016. The trial court gave defendant ample opportunity to explain the reasons for his failure to comply. Defendant admitted missing his drug test because he "just forgot." According to defendant, he had a tendency to "forget things" and the person who used to help him was no longer in his life. Defendant also claimed that his ex-girlfriend was trying to "sabotage" him. The trial court noted defendant's previous failures to comply, explaining that he was "walking a very fine line." The court then scheduled a drug court hearing for October 17, 2016, to discuss defendant's noncompliance and determine whether he deserved another opportunity at drug court. At that hearing, defendant's counsel confirmed defendant "did indeed apparently violate the terms of drug court."
The record in this case shows that defendant had actual notice of the probation violation alleged and that defendant had an opportunity to respond. The record also indicates that defendant waived formal notice and a more formal Vickers hearing by participating in the drug court program, and by his counsel's submission without objection and defendant's silence. Defendant has not pointed to anything in the record suggesting that, when he arrived at the October 4 or 17, 2016 hearings, he was surprised at the reason he was there or the potential consequence of his probation violation. (People v. Woodall (2013) 216 Cal.App.4th 1221, 1239; see People v. Hawkins (1975) 44 Cal.App.3d 958, 967 ["Neither the defendant nor his counsel objected that they had inadequate notice of the [probation violation] charges and thus, absent objection, we will not imply inadequate notice from a record which is silent as to exactly how the defendant was given notice of the charges"].)
At the October 17, 2016 hearing, defendant and his attorney were silent during the court's comments that defendant was no longer eligible for drug court and that defendant had previously waived his rights to a Vickers hearing thereby conceding to the summary characterization of the court's resolution of the probation violation and waiving any right to a more formal process. The only statements or gestures by either defendant or his counsel were during the sentencing portion of the hearing. Thus, in the words of the court in Vickers, the "course of conduct and the attending circumstances [we]re factually undisputed," as revealed by "a preliminary statement in the nature of an offer of proof by the parties," leaving only the question of "the legal consequences" of a "course of conduct" that was indisputable if not "undisputed." (Vickers, supra, 8 Cal.3d at p. 457, fn. 6.) Therefore, the trial court was entitled to proceed summarily as it did, and there was no violation of defendant's constitutional rights.
Defendant's reliance on People v. Mumm (2002) 98 Cal.App.4th 812 (Mumm), for the proposition that one cannot knowingly and intelligently waive the right to an evidentiary hearing for future and unknown alleged probation violations, is misplaced. In Mumm, the appellate court held that a "defendant could not knowingly and intelligently waive the right to appeal any unforeseen or unknown future error." (Id. at p. 815.) The court found that "a waiver of appeal rights does not apply to ' "possible future error" [that] is outside the defendant's contemplation and knowledge at the time the waiver is made.' [Citations.]" (Ibid.) Mumm is inapposite to the present case. Here, defendant waived his right to a Vickers hearing "on any violations that may occur while [he was] on Drug Court Probation." The language of the waiver expressly waives the right to an evidentiary hearing for future and unknown probation violations. Unlike Mumm, the instant case does not involve waiving some future unforeseen error outside of defendant's contemplation.
As previously noted, a probationer may waive his Vickers rights. (Moss, supra, 175 Cal.App.3d at p. 930.) Here, defendant executed the Agreement, similar to a plea bargain, by which he waived his rights to a Vickers hearing. The Agreement was acknowledged by defendant and all relevant terms and waivers were initialed by defendant. In return for the relinquishment of the procedural rights relating to probation revocation proceedings, defendant garnered the opportunity to rehabilitate himself, and dismissal of all the charges. Defendant does not assert that he did not understand the Agreement's terms. By virtue of the Agreement, defendant validly waived his rights under Vickers.
Based on the foregoing, we find that there was no error, constitutional or procedural.
B. Violation of Due Process Rights
In a related contention, defendant argues the trial court violated his due process rights by relying on unsubstantiated hearsay, specifically the email from defendant's drug counselor, without affording him an opportunity for confrontation and cross-examination. We disagree.
As discussed above in section III.A., ante, a probationer may waive the minimum due process requirements of a formal probation revocation hearing, including the right to confront and cross-examine adverse witnesses. (Vickers, supra, 8 Cal.3d at pp. 457-458; Moss, supra, 175 Cal.App.3d at p. 929.) The facts and circumstances surrounding the instant case constitute sufficient evidence that defendant voluntarily and intelligently waived his constitutional rights to confront and cross-examine adverse witnesses. In waiving his right to a Vickers hearing as a condition of entry into the drug court program, defendant effectively waived his right to confront and cross-examine adverse witnesses at such a hearing.
Furthermore, hearsay evidence is admissible in probation revocation proceedings. (§ 1203.2, subd. (a); People v. O'Connell (2003) 107 Cal.App.4th 1062, 1066.) Ordinarily the question is the reliability of the hearsay evidence. The trial court's decision will not be overturned in the absence of a clear showing of abuse of discretion. (Abrams, supra, 158 Cal.App.4th at p. 400.)
In order to preserve an evidentiary issue for appellate review, a party is required to make a contemporaneous objection on the proper grounds. (People v. Buford (1974) 42 Cal.App.3d 975, 982-983.) Making such an objection provides the trial court with the opportunity to correct any actual errors. It also provides the appellate court with a complete record in order to evaluate the trial court's exercise of discretion.
In the present case, defendant's substance abuse counselor sent an email to the trial court on October 3, 2016, indicating defendant's violations of certain terms and conditions of his drug court program. The email specifically indicated defendant had recently failed to report for a drug test on September 30, 2016, and that in the past, defendant had missed two drug tests, tested positive for methamphetamine, and had been sanctioned for driving on a suspended license. An unknown source also reported to the court that defendant had been associating with Anita S., a person whom defendant had been ordered to have no contact with. Defendant made no objection to defendant's substance abuse counselor's email sent to the court on October 3, 2016, or to the court's statement regarding associating with Anita S. In fact, at the October 4, 2016 hearing the following day, defendant addressed the court and did not contest his substance abuse counselor's email. Defendant also acknowledged that he was not drug testing as required by his drug court program and admitted to missing his drug test on September 30, 2016. In response to the court's statement that they had conversations "time and time again about" defendant not following through and being compliant with his drug court program, defendant specifically stated: "Your Honor, I have some issues in my mind. I forget things, you know. But I'm—you know, I love drug court. I'm doing a real good job. It's brought me so far. I could never be where I am today without it, you know, but I do forget things." Defendant also stated that the person who helped him remember is no longer in his life to help him and that his ex-girlfriend was "trying to sabotage" him. Furthermore, at the October 17, 2016 hearing, defendant's counsel acknowledged that defendant "did indeed violate the terms of drug court" and did not object to defendant's drug counselor's email or the court's statement about defendant associating with Anita S.
Defendant does not dispute that the objection could be deemed forfeited. Rather he contends we should not apply the forfeiture doctrine because an objection would have been futile. There is simply nothing in the record to support a finding of futility and we decline to make such a finding. Not only was no objection made to the substance counselor's email, defendant and his counsel acknowledged defendant's violation of the terms of drug court. We find the current objection to the use of hearsay evidence has been forfeited. We will not address the merits of the appellate challenge to the admissibility of the evidence.
C. Waiver of Section 4019 Conduct Credits
Defendant also argues the trial court erred in denying him custody credits under section 4019 without evidence of a knowing and intelligent waiver. The People respond defendant waived conduct credits pursuant to section 4019 for the period of time prior to the October 17, 2016 probation revocation hearing because defendant expressly waived his right to section 4019 credits as a condition of the drug court program. We agree with the People.
Criminal defendants convicted of felonies are entitled to (1) credit for time spent in custody prior to sentencing or as a condition of probation (§ 2900.5) and (2) credit for good conduct and work performed during presentence custody (§ 4019). A defendant may specifically waive the right to custody credits, provided that waiver is voluntarily and intelligently made. (People v. Johnson (1978) 82 Cal.App.3d 183, 187-188.) "To determine whether a waiver is knowing and intelligent, the inquiry should begin and end with deciding whether the defendant understood he [or she] was giving up custody credits to which he [or she] was otherwise entitled." (People v. Burks (1998) 66 Cal.App.4th 232, 236, fn. 3 (Burks); see People v. Arnold (2004) 33 Cal.4th 294, 309.) "[A] custody credit waiver may be found to have been voluntary and intelligent from the totality of the circumstances, even if the sentencing court failed to follow the 'better course' of specifically advising the defendant regarding the scope of his [or her] waiver." (Burks, at p. 235.)
The record here shows that on April 2, 2015, defendant signed the Drug Court Agreement and placed his initials next to the following box: "(f) I also waive all P.C. 4019 credits as a condition of participating in the DRUG COURT TREATMENT PROGRAM." On that same day, defendant also signed the Drug Court Terms and Conditions of Probation and accepted term 001A, which provides: ". . . I will NOT receive any 4019 conduct credits prior to today or for any time I serve in custody while in the drug court treatment program . . . ." Both documents contain defendant's signature and initials and indicate defendant read, understood, and agreed to all the terms and conditions of probation. Defendant also acknowledged that he had read, understood, agreed to, and waived "any further hearing regarding, all the terms and conditions of probation listed above" and that he had also waived "having the terms and conditions of probation, findings, and orders read aloud in open court." Nothing in the record suggests defendant's waiver of section 4019 credits was involuntary or unknowing. Rather, the record here demonstrates that, "from the totality of the circumstances" (Burks, supra, 66 Cal.App.4th at p. 235), defendant knowingly and intelligently waived his right under section 4019 to presentence conduct credits.
Relying on People v. Black (2009) 176 Cal.App.4th 145 (Black), defendant claims "there is no evidence in the record [defendant] ever waived his right to custody credits under section 4019" and that, absent such evidence, "this [c]ourt cannot conclude that [defendant] knowingly and intelligently waived his right to section 4019 credits." Defendant is mistaken. As noted, defendant signed two documents waiving his custody credits under section 4019.
In Black, supra, 176 Cal.App.4th 145, this court found a valid waiver where the defendant signed and initialed a drug court application and agreement that stated she had waived any section 4019 credits as a condition of participation. (Id. at pp. 152, 154-155.) We explained that the defendant had not only signed the agreement, but she also had initialed next to the paragraph indicating she could read and understand English and that she had sufficient time to read her statement of rights and the agreement. In addition, during a hearing held the same date the defendant had signed the agreement, she responded in the negative to the trial court's inquiry of whether she had any questions. (Id. at pp. 154-155.) This court concluded that under those circumstances, the defendant was fully aware that she was giving up her right to any credits previously accrued under section 4019 in order to participate in the drug court rehabilitation program. (Ibid.)
Similarly, in this case, defendant not only signed the drug court Agreement, but he had also initialed next to the paragraph indicating he could read and understand English and that he had sufficient time to read his statement of rights and the Agreement. Although the record does not contain an oral recitation of the Agreement or the Drug Court Terms and Conditions of Probation, the totality of the circumstances show that defendant knowingly and intelligently waived section 4019 credits in order to participate in drug court. Defendant initialed, signed and received a copy of the Agreement, as well as, the Drug Court Terms and Conditions of Probation. Term No. 9(f) of the Agreement specifically stated that defendant waived section 4019 credits to participate in drug court. And, term No. 001A of the Drug Court Terms and Conditions of Probation specifically stated defendant would waive any 4019 conduct credits while in the drug court treatment program. Defendant acknowledged that he had reviewed, understood, and accepted the terms and conditions of his probation. Accordingly, we find defendant validly waived his conduct credits from the time defendant entered drug court to the October 17, 2016 hearing.
D. Upper Term Sentence
Defendant also argues that the trial court abused its discretion in imposing the upper term because the court relied "exclusively" on alleged probation violations occurring after it reinstated him on probation on April 28, 2015 in violation of California Rules of Court, rule 4.435. In our view, the record does not unequivocally support this claim. In any event, to the extent the trial court erred, any error was harmless.
Preliminarily, we note the waiver doctrine applies to claims that a trial court failed to properly make or articulate its discretionary sentencing choices. (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott); People v. Kelley (1997) 52 Cal.App.4th 568, 582 (Kelley.) "Ordinarily, an appellate court will not consider a claim of error if an objection could have been, but was not, made in the lower court. [Citation.] The reason for this rule is that '[i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided.' [Citations.] '[T]he forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.' [Citation.]" (People v. French (2008) 43 Cal.4th 36, 46.) Thus, a defendant cannot remain mute while the trial court states its reasons for imposing a sentence and then on appeal claim that its statement of reasons was defective. Scott explained: "[C]ounsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. aRoutine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention." (Id. at p. 353, italics added.) "[B]y encouraging counsel to intervene at the time sentencing choices are made, we hope to reduce the number of issues raised in the reviewing court in any form." (Id. at p. 356, fn. 18, first italics added.) Here, defendant never objected to the trial court's purported reliance on his probation performance after his probation was reinstated as an aggravating factor, and has therefore forfeited this claim on appeal. "Had [defendant] timely and specifically objected below, the trial court presumably would have had an opportunity to correct, and could have corrected, any error. [Citation.]" (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1372, fn. omitted (Ortiz).)
We note that during oral argument, defendant's appellate counsel, citing Pizarro v. Reynoso (2017) 10 Cal.App.5th 172 at page 179 (Pizarro), argued that this court should not address the forfeiture issue sua sponte and that the People forfeited the forfeiture rule by failing to raise the forfeiture issue in their respondent's brief. We disagree with defendant's contention that this court cannot discuss the forfeiture rule sua sponte. Moreover, defendant's reliance on Pizarro is misplaced. In that case, the court held "An appellant must '[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority.' (Cal. Rules of Court, rule 8.204(a)(1)(B); see Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4.) Failure to provide proper headings forfeits issues that may be discussed in the brief but are not clearly identified by a heading." (Pizarro, at p. 179.) That case does not involve a criminal matter and does not stand for the proposition that an appellate court may not discuss an issue sua sponte.
In any event, defendant's claim lacks merit. California Rules of Court, rule 4.435(b)(1), provides in pertinent part that when a court imposes sentence after revoking probation, "[t]he 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." The rule "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.) The "spirit and purpose of the rule" is to "preclude the possibility that a defendant's bad acts while on probation" will influence his sentence upon revocation of probation. (Id. at p. 1163.) However, " 'a later sentence upon revocation of the reinstated probation may take into account events occurring between the original grant and the reinstatement.' " (Black, supra, 176 Cal.App.4th at p. 151, quoting People v. Harris (1990) 226 Cal.App.3d 141, 147 (Harris).) Additionally, it is well settled that a court may consider events occurring subsequent to a probation grant or reinstatement of a probation grant when deciding whether to revoke or reinstate probation. (People v. White (1982) 133 Cal.App.3d 677, 681 (White); People v. Jones (1990) 224 Cal.App.3d 1309, 1316, fn. 4 (Jones); People v. Ayub (1988) 202 Cal.App.3d 901, 905.)
Courts have broad sentencing discretion, and we review a trial court's sentencing choices, including whether to reinstate probation or impose a prison sentence, and whether to impose the upper term, for an abuse of discretion. We reverse only if there is a clear showing the sentence was arbitrary or irrational. (People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval); People v. Moberly (2009) 176 Cal.App.4th 1191, 1196 (Moberly); People v. Avalos (1996) 47 Cal.App.4th 1569, 1582-1583 (Avalos); People v. Downey (2000) 82 Cal.App.4th 899, 909 (Downey).) A trial court abuses its discretion if it relies upon circumstances that are not relevant to, or that otherwise constitute an improper basis for, the sentencing decision. (Sandoval, at p. 847; Moberly, at p. 1196.) " 'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
The trial court may rely on a single valid aggravating circumstance to impose the upper term and may reject or disregard any mitigating circumstance without stating reasons. (People v. Lamb (1988) 206 Cal.App.3d 397, 401; Avalos, supra, 47 Cal.App.4th at p. 1583.) The court thus could properly rely on defendant's criminal history, his performance on probation from the time he was originally granted probation on October 31, 2014, until he was reinstated on probation in the drug court program on April 28, 2015, and the underlying facts of the dismissed count, in imposing the upper term. (Cal. Rules of Court, rule 4.421 [listing the circumstances in aggravation]; Black, supra, 176 Cal.App.4th at pp. 151-152.)
Our review of the record does not convince us that the trial court relied upon events occurring subsequent to the reinstatement of probation as a basis for its imposition of the upper term, despite defendant's argument that the drug court violations were the only reasons cited by the trial court. At the sentencing hearing, the trial court was required to consider two questions: first, whether to incarcerate defendant or reinstate probation; and second, the appropriate sentence if probation was not reinstated. As to the first question, the trial court properly considered postreinstatement probation circumstances, such as defendant's performance while in drug court. "Obviously, a court must consider postprobation events to determine whether or not there has been a violation of probation and, if probation has been revoked, whether the defendant should be reinstated on probation or incarcerated." (White, supra, 133 Cal.App.3d at p. 681.) Moreover, where a court initially suspends imposition of sentencing and places a defendant on probation but later revokes probation and imposes a sentence, it must state its reasons for choosing imprisonment over reinstatement of probation. (People v. Cotton (1991) 230 Cal.App.3d 1072, 1080-1081; Jones, supra, 224 Cal.App.3d at pp. 1312-1315; People v. Pennington (1989) 213 Cal.App.3d 173, 176-177; Cal. Rules of Court, rule 4.406(b)(2).) In our view, the trial court's statements that it was imposing sentencing because defendant violated the terms of his drug court program were directed toward its decision not to reinstate probation, rather than to the imposition of the upper term.
In his reply brief, defendant asserts the People's argument "is at odds" with People v. Colley (1980) 113 Cal.App.3d 870 (Colley). In Colley, the defendant violated probation and was sentenced to the midterm for burglary. The sentence was recalled and the defendant was placed on probation. When probation was revoked, the trial court sentenced the defendant to the upper term on the burglary conviction. (Id. at p. 872.)
The appellate court concluded the aggravated term was improperly based on the defendant's performance on probation in violation of California Rules of Court, former rule 435(b)(1) (now rule 4.435(b)(1)). (Colley, at pp. 872-873.) The Court of Appeal modified the defendant's sentence from the upper to the midterm. (Id. at p. 874.) As explained in Black, supra, 176 Cal.App.4th 145, the Colley court did not consider the circumstances at issue in Harris, supra, 226 Cal.App.3d 141 or Black, because there was no reinstatement of probation followed by another revocation. Thus, Colley is not pertinent to the circumstances here, where there was a reinstatement of probation. In conclusion, to the extent that the trial court considered defendant's poor performance on probation from the time of his initial grant of probation through his reinstatement, there was no error and no violation of California Rules of Court, rule 4.435(b)(1). (Harris, at pp. 145-147; Black, at p. 152.) However, it would have been error for the court to have considered his poor performance following his reinstatement as an aggravating factor in selecting the upper term.
The trial court here engaged in common drug court colloquy in admonishing defendant about his poor performance in drug court as the grounds for revoking defendant's probation. The trial court never stated that defendant's postprobation conduct was the basis for imposing the upper term. As previously explained, it is the defendant's burden as the party attacking the sentencing decision to show that it was arbitrary or irrational, and, absent such showing, there is a presumption that the court " ' "acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' " (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
Citing Jones, supra, 224 Cal.App.3d at page 1316, defendant asserts that, because the trial court failed to state its reasons for selecting the upper term, "it logically follows that the drug court violations were justification for the upper term." In Jones, the court stated, "having provided a reason for not extending probation, the court was not also required to justify the middle term, for the reasons for denying probation are the reasons for selecting a state prison sentence and need not be stated twice." (Id. at p. 1316.)
Nonetheless, prior to imposing sentence, the court listened to the prosecutor argue for the aggravated term based on defendant's poor performance on his initial grant of probation, his lengthy criminal history, and the residential burglary charge and four prison priors that had been dismissed with a Harvey waiver. Even if the court did rely in part on the subsequent drug court violations to justify the aggravated term, the error was harmless. (See Downey, supra, 82 Cal.App.4th at p. 917.) Sentencing courts have wide discretion in weighing aggravating and mitigating factors and may balance them in qualitative as well as quantitative terms. (Avalos, supra, 47 Cal.App.4th at p. 1582; Sandoval, supra, 41 Cal.4th at p. 847; § 1170, subd. (b).) "The mere fact a trial court erroneously relies upon certain factors in imposing an upper term does not per se require reversal. Reversal is only required where there is a reasonable probability the trial court would sentence the defendant differently absent the erroneous factors. [Citation.] Thus, where the trial court has stated several factors warranting the upper term, and only some of those factors are erroneous, the sentence is generally affirmed. [Citations.]" (People v. Holguin (1989) 213 Cal.App.3d 1308, 1319 (Holguin); People v. Price (1991) 1 Cal.4th 324, 492 ["When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper"]; People v. Weaver (2007) 149 Cal.App.4th 1301, 1318-1319.) As previously noted, an upper term sentence may properly be imposed where even a single aggravating factor is present. (People v. Osband (1996) 13 Cal.4th 622, 728; Holguin, at p. 1319.)
As the People point out, the trial court was very familiar with defendant and the instant case, as it had conducted all of the proceedings from the plea to the probation revocation and sentencing. Defendant signed a Harvey waiver, which allowed the trial court to consider the factual circumstances of the dismissed counts and allegations "in deciding whether or not to impose a midterm, aggravated or mitigated prison term." (See Harvey, supra, 25 Cal.3d at pp. 757-758.) The trial court, having read the preliminary hearing transcript, was well aware of the underlying facts of the case. It was also aware of defendant's lengthy criminal history based on the five prison priors alleged in the information. Defendant also admitted to violating probation prior to its reinstatement on April 28, 2015. Moreover, "The court is presumed to have considered all relevant factors unless the record affirmatively shows the contrary. [Citations.]" (Kelley, supra, 52 Cal.App.4th at p. 582.) Nothing in the record here indicates a reasonable probability the court would have chosen a lesser sentence had it recognized it was precluded by California Rules of Court rule 4.435(b)(1), from considering defendant's performance from after reinstatement of probation on April 28, 2015, until probation was revoked on October 17, 2016. As explained above, there were numerous factors in aggravation to justify the court's decision to impose the upper term. "One aggravating factor is sufficient to support the imposition of an upper term. [Citations.]" (Ortiz, supra, 208 Cal.App.4th at p. 1371.)
Although no reasons for the upper term were stated, defendant's criminal history and his performance on probation from the time it was originally granted until it was reinstated made him eligible for the upper term and the trial court was free to consider other factors in imposing an upper term sentence. (See People v. Black (2007) 41 Cal.4th 799, 819-820.) It is highly unlikely, given the court's comments and defendant's criminal history and performance on probation prior to its reinstatement, that it would have imposed a more favorable sentence had it known it was improper to rely on defendant's performance on probation after it was reinstated on April 28, 2015. Accordingly, any error was harmless.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: SLOUGH
J. FIELDS
J.