Opinion
D072738
09-07-2018
THE PEOPLE, Plaintiff and Respondent, v. ARNULFO GAMBOA, Defendant and Appellant.
Ashley Johndro, 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, Steve Oetting and Matthew Mulford, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JCF35880) APPEAL from a judgment of the Superior Court of Imperial County, Christopher J. Plourd, Judge. Affirmed. Ashley Johndro, 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, Steve Oetting and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.
After pleading no contest to carrying a concealed dirk or dagger (Pen. Code, § 21310), Arnulfo Gamboa was placed on probation, which was later revoked based on the trial court's finding that Gamboa violated two terms of his probation, consisting of using drugs and failing to enroll in a drug counseling program as directed by his probation officer. The trial court then sentenced Gamboa to the upper-term sentence of three years in jail.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Gamboa contends (1) the trial court violated his constitutional right to due process during the probation revocation hearing by considering an exhibit containing positive drug test reports because defense counsel was not able to cross-examine the laboratory technicians who analyzed the tests; and (2) the trial court erred in imposing an upper-term sentence based, in part, on Gamboa's performance on probation in this case.
We conclude that Gamboa's constitutional challenge to the trial court's admission of the drug test reports at the probation revocation hearing lacks merit. We further conclude that Gamboa has waived his challenge to the imposition of an upper-term sentence based, in part, on his performance on probation because no objection was made in the trial court. Further, any error was harmless. Accordingly, we affirm the order revoking probation, and we affirm the judgment imposing a three-year upper-term sentence.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On January 19, 2016, a complaint charged Gamboa with carrying a concealed dirk or dagger (§ 21310). On February 10, 2016, Gamboa pled no contest to that offense, and on March 15, 2016, in accordance with the terms of the plea agreement, the trial court ordered that Gamboa be placed on formal probation for three years.
On January 30, 2017, the probation department filed a petition for revocation of Gamboa's probation. The petition alleged that on January 27, 2017, during a probation compliance check of Gamboa's residence, methamphetamine was found under a mattress, numerous oxycodone pills were found in a dresser, and Gamboa was in the presence of someone who possessed a methamphetamine pipe. Further, it was alleged that the probation officer's saliva swab drug tests of Gamboa from August, September, November and December 2016 were positive for methamphetamine. On February 1, 2017, the trial court summarily revoked Gamboa's probation pending a revocation hearing. On February 16, 2017, Gamboa admitted the probation violations alleged in the January 30, 2017 petition, and the trial court revoked and then reinstated Gamboa's probation and ordered that Gamboa serve 90 days in jail.
On May 3, 2017, the probation department filed a second petition to revoke Gamboa's probation. As alleged in that petition, on May 2, 2017, while the probation officer administered a saliva swab drug test, Gamboa told the probation officer that he was taking medication for back pain, but he was not able to supply a prescription for the medication. The petition also alleged that despite being directed to enroll in a drug recovery program in March and April 2017, Gamboa had not done so as of May 2, 2017. Further, it was alleged that Gamboa had threatened his probation officer. The petition specified three conditions of probation that Gamboa had violated: (1) "Defendant shall abstain from the possession or use of any drugs, narcotics, or other illicit substances not specifically prescribed for him by a license[d] physician;" (2) "Defendant is to participate in a counseling/educational program as directed by the probation officer . . .;" and (3) "Defendant shall follow all standard terms of probation and reasonable orders of the probation officer."
The trial court held a probation revocation hearing on June 8 and 13, 2017. The probation officer testified that Gamboa told him on May 2, 2017, that he had taken pain medication for back problems and could not produce a prescription, although the probation officer had advised Gamboa several times in the past that he needed a prescription for that medication. The probation officer also testified that on multiple occasions he had advised Gamboa that he was required to enroll in a specific drug counseling program, but Gamboa failed to do so. In explaining to Gamboa that he was required to enroll in the drug counseling program, the probation officer told Gamboa that, in the past, he had positive drug tests for methamphetamine. According to the probation officer, Gamboa became upset and hostile about the requirement that he enroll in a drug counseling program and stated that he was tired of being on probation. Gamboa told the probation officer that he "better watch out" and that he comes from a family "that knows how to fuck people up," which the probation officer understood as a threat.
The trial court ruled that Gamboa was in violation of his probation. Specifically, the trial court made a finding that Gamboa committed two of the three probation violations alleged in the petition: drug use and failing to participate in a drug counseling program as directed by the probation officer.
At the sentencing hearing on July 11, 2017, Gamboa requested that probation be reinstated for a second time. The trial court concluded that reinstatement of probation was not appropriate, citing Gamboa's "dismal failure of performance on probation." The court imposed an upper-term sentence of three years in jail. (§ 1170, subd. (h)(1) [specifying three-years as an upper-term sentence].)
II.
DISCUSSION
A. The Trial Court Did Not Prejudicially Err in Admitting the Drug Test Results
We first consider Gamboa's challenge to the order revoking his probation. Gamboa contends that the trial court prejudicially erred during the probation revocation hearing, in violation of his constitutional right to due process, by admitting an exhibit containing the results from seven saliva swab drug tests administered to Gamboa while he was on probation, each of which was positive for methamphetamine.
As we have explained, the petition to revoke Gamboa's reinstated probation filed on May 3, 2017, which is at issue here, was based on allegations that (1) Gamboa admitted to his probation officer that he was taking pain medication for which he did not have a prescription, in violation of the probation condition prohibiting non-prescription drug use; (2) Gamboa failed to enroll in a drug counseling program, in violation of the probation condition requiring such participation when directed by the probation officer; and (3) Gamboa was not following the terms of probation and reasonable orders of the probation officer, based on the allegation that Gamboa made threats to his probation officer and stated he was tired of having to follow probation conditions. Although the first probation revocation petition, filed January 30, 2017, was based on the positive drug test results in August, September, November and December 2016, the petition filed on May 3, 2017, did not rely on those test results for the allegation that Gamboa had used drugs in violation of his probation condition.
During the second probation revocation hearing, the prosecutor elicited testimony from the probation officer that Gamboa previously tested positive for methamphetamine and requested that the trial court admit the positive drug test reports as an exhibit. The exhibit contained seven separate one-page drug test reports from Alere laboratory in Richmond, Virginia showing positive results for methamphetamine. The saliva swabs for the drug tests were collected from Gamboa and analyzed by the laboratory in May, June, August, September, November and December 2016, and May 2017. Each drug test report was certified by the signature of the technician who performed the analysis. Four different technicians were involved in certifying the seven drug test reports.
Defense counsel objected to the admission of the exhibit containing the seven drug test reports on numerous grounds, including that the allegations of the probation revocation petition at issue did not rely on those test reports, and based on lack of foundation and hearsay.
The trial court ruled that it would admit the exhibit containing the drug test reports. In the course of considering whether to admit the exhibit, the trial court noted (1) the instant petition to revoke Gamboa's probation based on drug use was not based on the positive drug test reports, but instead on Gamboa's admission to using painkillers without a prescription; (2) in admitting the prior probation violation in February 2017, Gamboa admitted to the positive drug test results from August, September, November and December 2016; and (3) the positive drug test reports were relevant because they tended to show that there were good reasons for the probation officer to direct Gamboa to participate in a drug treatment program, as drug use was "an ongoing issue" with Gamboa. In making its ruling admitting the exhibit, the court also observed that although each drug test report states that it is a "screen only result" and "a confirmatory test is highly recommended," Gamboa previously admitted to violating his probation based on several of those drug test reports, providing additional evidence of Gamboa's drug use.
Indeed, the drug test report from May 2017 could not have been a basis for the May 3, 2017 petition to revoke Gamboa's probation because that drug test report was not received by the probation department until May 8, 2017, after the petition was filed.
Defense counsel also argued against the admission of the test results by raising questions about the chain of custody, in that the laboratory indicated that certain information on the forms it received along with Gamboa's saliva swabs was "illegible," including Gamboa's name in two instances. However, the probation officer testified that the probation department was able to verify that the test results corresponded to Gamboa based on other information, including a date and social security number. In admitting the exhibit, the trial court stated that it was "not bothered by the chain of custody issues" because of the other information identifying the test results as corresponding to Gamboa.
Gamboa contends that the trial court violated his constitutional right to due process because the positive drug test reports contained in the exhibit admitted by the trial court constituted testimonial hearsay that should not have been presented except through the testimony of the laboratory technicians who analyzed the tests.
Although defense counsel did not specifically make a constitutionally-based objection that admission of the exhibit would constitute the admission of hearsay in violation of Gamboa's right to due process, because of counsel's extensive objections to the admission of the exhibit, including objections based on hearsay and lack of foundation, we conclude that the due process challenge to the admission of the exhibit was preserved for appeal. (People v. Nelson (2016) 1 Cal.5th 513, 534 [new constitutional arguments are not forfeited on appeal if "the new arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial court's act or omission, insofar as wrong for the reasons actually presented to that court, had the additional legal consequence of violating the Constitution"].) Moreover, even were the issue not properly preserved, we would exercise our discretion to reach it.
A trial court may revoke probation "if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation or parole officer or otherwise that the person has violated any of the conditions of his or her [probation]." (§ 1203.2, subd. (a)(5).) The trial court has "very broad discretion in determining whether a probationer has violated probation." (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) Accordingly, we will reverse a decision to revoke probation only upon a showing of abuse of such discretion. (Id. at p. 442.) We apply the same standard in reviewing a trial court's evidentiary rulings at a probation revocation hearing. (People v. Shepherd (2007) 151 Cal.App.4th 1193, 1197-1198.) However, when, as here, the issue presented concerns a claim that the defendant's constitutional right to due process has been violated, we review the constitutional question de novo. (People v. Stanphill (2009) 170 Cal.App.4th 61, 78 (Stanphill).)
Based on the requirements of the Confrontation Clause of the Sixth Amendment as interpreted in Crawford v. Washington (2004) 541 U.S. 36, 68 (Crawford), case law holds that the certified results of a laboratory test generally should not be admitted against a defendant in a criminal trial unless the defendant has the opportunity to cross-examine the laboratory technician who has certified the test results. (Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 311 [the admission of sworn certificates by laboratory analysts, which stated that material seized by police from the defendant's car was cocaine of a certain quantity, violated the petitioner's Sixth Amendment right of confrontation]; Bullcoming v. New Mexico (2011) 564 U.S. 647, 652 [a laboratory analyst's certificate stating the blood alcohol level of a sample taken from the defendant was not admissible without testimony of the analyst who tested the blood sample].)
The premise of these decisions is that the test results are "testimonial" in nature for the purpose of the Confrontation Clause because they are formalized and their primary purpose pertains to a criminal prosecution. (People v. Lopez (2012) 55 Cal.4th 569, 578 (Lopez).) As our Supreme Court has explained, "a statement is testimonial when two critical components are present." (Id. at p. 581.) Specifically, "to be testimonial the out-of-court statement must have been made with some degree of formality or solemnity" and "an out-of-court statement is testimonial only if its primary purpose pertains in some fashion to a criminal prosecution." (Id. at pp. 581-582.)
As Gamboa acknowledges, the Confrontation Clause does not apply in probation revocation hearings. (People v. Gomez (2010) 181 Cal.App.4th 1028, 1039; People v. Abrams (2007) 158 Cal.App.4th 396, 401; People v. Johnson (2004) 121 Cal.App.4th 1409, 1411; Stanphill, supra, 170 Cal.App.4th at p. 78.) "[T]he Sixth Amendment confrontation clause applies only to 'criminal prosecutions,' and a probation revocation hearing is not a 'criminal prosecution.' " (Stanphill, at p. 78.) Thus, the authorities applying our Supreme Court's decision in Crawford to exclude the admission of certified laboratory test results are not relevant to the issue of whether the drug test reports were admissible in Gamboa's probation revocation hearing. Instead, as applicable here, a "[p]robationer['s] limited right to confront witnesses at revocation hearings stems from the due process clause of the Fourteenth Amendment, not from the Sixth Amendment." (Johnson, at p. 1411, italics added.)
Turning to the requirements of the due process clause, when hearsay evidence is documentary in nature, its admission in a probation revocation hearing will be consistent with the defendant's right to due process if the court finds sufficient "indicia of reliability." (People v. Maki (1985) 39 Cal.3d 707, 715-717.) However, when hearsay evidence is testimonial in nature, the evidence may be admitted consistent with the due process clause if there is "good cause" for its admission. (People v. Arreola (1994) 7 Cal.4th 1144, 1159 (Arreola) [requiring "a showing of good cause before a defendant's right of confrontation at a probation revocation hearing can be dispensed with by the admission of a preliminary hearing transcript in lieu of live testimony"].) Relying on the case law arising under the Confrontation Clause which defines "testimonial" statements, Gamboa contends that the drug test results admitted into evidence in his probation revocation hearing are testimonial in nature for the purpose of a due process analysis because they are formalized and pertain to his criminal prosecution. Applying the test for admission of testimonial hearsay evidence under a due process analysis, Gamboa contends that the drug test results should not have been admitted in his probation revocation hearing because there was no good cause to do so.
To address Gamboa's argument we will assume, without deciding, that the drug test reports at issue here are testimonial, and that, accordingly, they should have been admitted under the due process clause only if good cause existed to do so. Nevertheless, as we will explain, even assuming that the good cause standard applies, it was amply satisfied here.
Were we to consider whether the drug test reports are testimonial in nature, we would be required to decide whether they were "made with some degree of formality or solemnity" and whether their "primary purpose pertains in some fashion to a criminal prosecution." (Lopez, supra, 55 Cal.4th at pp. 581-582.)
The standard for assessing good cause under a due process analysis is set forth in Arreola: "The broad standard of 'good cause' is met (1) when the declarant is 'unavailable' under the traditional hearsay standard (see Evid. Code, § 240), (2) when the declarant, although not legally unavailable, can be brought to the hearing only through great difficulty or expense, or (3) when the declarant's presence would pose a risk of harm (including, in appropriate circumstances, mental or emotional harm) to the declarant." (Arreola, supra, 7 Cal. 4th at pp. 1159-1160.) "Further, in determining the admissibility of the evidence on a case-by-case basis, the showing of good cause that has been made must be considered together with other circumstances relevant to the issue, including the purpose for which the evidence is offered (e.g., as substantive evidence of an alleged probation violation, rather than, for example, simply a reference to the defendant's character); the significance of the particular evidence to a factual determination relevant to a finding of violation of probation; and whether other admissible evidence, including, for example, any admissions made by the probationer, corroborates the former testimony, or whether, instead, the former testimony constitutes the sole evidence establishing a violation of probation." (Arreola, at p. 1160.)
As Arreola observed, "[s]everal federal circuit courts have adopted a similar approach, balancing the defendant's need for confrontation against the prosecution's showing of good cause for dispensing with confrontation." (Arreola, supra, 7 Cal. 4th at p. 1160, citing U.S. v. Martin (9th Cir.1993) 984 F.2d 308, 311 (Martin); U.S. v. Bell (1986) 785 F.2d 640, 643.) Case law subsequent to Arreola has cited more recent federal circuit cases applying the same approach. (Stanphill, supra, 170 Cal.App.4th at pp. 78-79 [citing U.S. v. Comito (9th Cir.1999) 177 F.3d 1166].)
Here, the good cause standard is met because the parties do not dispute that the laboratory technicians could have been brought to the revocation hearing only at great difficulty or expense. Indeed, as the drug test reports indicate, the laboratory tests were performed a significant distance away in Richmond, Virginia by four different technicians, each of whom would have to be transported to California for the hearing.
More importantly, other circumstances identified in Arreola are present here, establishing good cause to admit the drug test results without requiring testimony from the laboratory technicians. First, considering "the purpose for which the evidence is offered," the drug test results were not offered as "substantive evidence of an alleged probation violation" (Arreola, supra, 7 Cal. 4th at p. 1160), but instead were offered to show that the probation officer had good reason to require that Gamboa enroll in a drug counseling program. Second, the evidence had little "significance . . . to a factual determination relevant to a finding of violation of probation" (ibid.) because none of the allegations in the petition for revocation of Gamboa's probation were based on the positive drug tests reports for methamphetamine contained in the exhibit. Instead, the petition to revoke Gamboa's probation was premised on Gamboa's admission of taking painkillers without a prescription and Gamboa's failure to enroll in a drug counseling program. Finally, considering "whether other admissible evidence, including, for example, any admissions made by the probationer" corroborates the positive drug test results (ibid.), as the trial court pointed out, during the February 2017 probation revocation proceeding, Gamboa admitted to the allegation that he had positive drug tests for methamphetamine in August, September, November and December 2016. There was no need to protect Gamboa's right to due process by allowing him to cross-examine the laboratory technicians who analyzed those drug tests since Gamboa already admitted to the results of those tests.
In sum, because (1) it would have been burdensome to bring the laboratory technicians to the probation revocation hearing, (2) the drug test results were not directly relevant to establishing any of the probation violations at issue, and (3) Gamboa admitted positive drug test results in his prior revocation proceeding, there was good cause for the trial court to admit the drug test results despite Gamboa's inability to cross-examine the laboratory technicians.
Gamboa relies on Martin, supra, 984 F.2d 308, which concluded that the defendant's right to due process was violated in a hearing for revocation of supervised release because two laboratory urinalysis reports were admitted without the ability to cross-examine anyone from the laboratory that performed the analysis. Martin is not applicable here because, as the Martin court explained, "the laboratory results were uniquely important to the court's finding that [defendant] possessed a controlled substance" as a basis for the revocation, which the defendant disputed. (Id. at p. 311.) Here, in contrast, the drug test results were not central to establishing the allegations in the petition to revoke Gamboa's probation, and Gamboa already admitted to most of the test results.
Further, even were we to conclude that there was any violation of Gamboa's due process rights from the admission of the exhibit containing the drug test results, any error was harmless beyond a reasonable doubt. (Arreola, supra, 7 Cal.4th at p. 1161 [because erroneous admission of testimonial hearsay in a probation revocation hearing is "of federal constitutional dimension, we must assess prejudice under the 'harmless-beyond-a-reasonable-doubt' standard"].) Here, as we have explained, the positive drug test reports contained in the exhibit admitted into evidence by the trial court did not form the basis for any of the probation violations alleged in the petition or found by the trial court to have occurred. Further, even if the positive drug test reports provided some support for a finding that the probation officer reasonably required Gamboa to enroll in a drug counseling program, Gamboa admitted to the positive drug test results at the February 2017 revocation hearing. Accordingly, we conclude beyond a reasonable doubt that the outcome of the probation revocation hearing would not have been more favorable to Gamboa had the trial court excluded the exhibit containing the positive drug test results. B. Gamboa Has Waived His Argument That the Trial Court Erred in Considering Gamboa's Performance on Probation in Selecting an Upper-Term Sentence
We next consider Gamboa's contention that this matter should be remanded for resentencing because the trial court improperly considered Gamboa's performance on probation when deciding to impose an aggravated upper-term sentence.
At the sentencing hearing, defense counsel requested that Gamboa once again be placed on probation instead of being sentenced to a term in custody. The trial court rejected that request and imposed an upper-term sentence of three years in jail. The trial court addressed both its grounds for rejecting probation and its grounds for imposing an upper-term sentence, stating:
"The Court has looked at the original circumstances in aggravation and mitigation, as well as the supplemental report. Essentially the facts of this case—I do remember the revocation hearing, and essentially there was little question the defendant was claiming he was being properly prescribed medications but not appropriately, is essentially lying to the probation officer. He has a dismal failure of performance on probation and parole, if you look at his prior record. That's a very significant circumstance in aggravation. Very rarely do we get probationers that not only don't perform well, but in this case the defendant did make veiled threats to the probation officer regarding his probationary status.
"I find Mr. Gamboa is simply—if there was anybody not suitable for probation, because he just simply refuses to be cooperative with his probation officer, who in this case I think went out of his way to try to work with Mr. Gamboa to address a very significant substance issue[] Mr. Gamboa simply either refuses or is unable to recognize.
"The troubling facts and circumstances regarding the background of the defendant Mr. Gamboa in this case is that he has significant crimes of violence in his past. Not only convictions of violent behavior, but he does have prior convictions of Vehicle Code Section [10]851. In this case he's carrying a weapon. The combination of him having significant violent propensities, as well as the fact he's carrying a weapon, tells the Court he's a significant risk to public safety. So because of his prior—significance of
his prior convictions and crimes of violence and the fact he was carrying a weapon and more particularly his dismal performance on probation, his refusal to accept any type of probation monitoring and threats to the probation officer, I'll find that the upper term is appropriate, simply because there's no significant mitigation in this case.
[¶] . . . [¶]
"So the Court will sentence the defendant to the upper term pursuant to—the upper term of 1170(h). Credits are going to be—the Court is selecting the upper term because of his prior record, his performance on probation being dismal."
As we read these comments, the trial court appears to have mixed together its discussion of the grounds for denying probation and the grounds for imposing an upper-term sentence. Further, because Gamboa performed poorly on probation in several previous cases, as the trial court expressly acknowledged during its comments, when the trial court referred to Gamboa's "dismal performance on probation" as a ground for imposing an aggravated sentence, it is possible that the trial court was referring solely to Gamboa's performance on probation in prior cases and was not including the instant case.
As Gamboa points out, California Rules of Court, rule 4.435(b)(1) provides that upon revocation and termination of probation, "when the sentencing judge determines that the defendant will be committed to prison or county jail under section 1170(h): [¶] . . . [¶] 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 . . . ." Interpreting the trial court's comments as indicating that the court considered Gamboa's performance on probation in this case in deciding to impose an upper-term sentence, Gamboa argues that the trial court violated Rule 4.435(b)(1) and that we should therefore vacate the sentence and remand for the trial court to impose a sentence without taking into account his performance on probation.
Gamboa has waived the argument because it was not raised in the trial court. As our Supreme Court has established, "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356 (Scott).) "[T]he waiver doctrine . . . appl[ies] to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (Id. at p. 353.) The waiver rule extends to situations, such as this, in which a trial court imposes an aggravated sentence in reliance on factors that it was prohibited from considering. (People v. de Soto (1997) 54 Cal.App.4th 1, 7-8 [improper dual use of facts underlying weapons use to impose the upper term and an enhancement was waived based on failure to interpose specific objection at sentencing]; People v. Dancer (1996) 45 Cal.App.4th 1677, 1693 [appellate challenge to using an element of the offense as an aggravating factor was waived because no objection was raised in the trial court].)
The waiver rule exists because "[r]outine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention." (Scott, supra, 9 Cal.4th at p. 353.) "Traditional objection and waiver principles encourage development of the record and a proper exercise of discretion in the trial court." (People v. Welch (1993) 5 Cal.4th 228, 236.) The policy behind the waiver rule is especially applicable here because the trial court was less than clear about whether it was relying on Gamboa's performance on probation in this case to select an upper-term sentence or only to deny probation, and an objection could have clarified the record. Had defense counsel interposed an objection to the use of Gamboa's performance on probation in this case to impose an upper-term sentence, the trial court could have explained whether it was relying on that factor here to aggravate the sentence.
Moreover, case law establishes that in a situation such as this, in which a defendant's probation has been revoked, reinstated, and then once again revoked, the trial court may rely on the defendant's performance on probation prior to the earlier revocation when deciding whether to impose an aggravated sentence. (People v. Harris (1990) 226 Cal.App.3d 141, 147 (Harris) ["a later sentence upon revocation of the reinstated probation may take into account events occurring between the original grant and the reinstatement" because "[t]o hold otherwise would seriously impede a court's flexibility to deal effectively with the offender who, granted the 'clemency and grace' of probation in the hopes of achieving rehabilitation [citation], proves unable to abide by the conditions of that liberty the first time out"]; People v. Black (2009) 176 Cal.App.4th 145, 151 [following Harris and noting that "the Harris decision has been good law since 1990"].) Therefore, in this case the trial court was permitted to rely on Gamboa's performance on probation until probation was first revoked and reinstated on February 16, 2017. Had defense counsel objected at the sentencing hearing, the trial court could have clarified whether its sentencing decision was based on Gamboa's performance before or after the reinstatement of probation on February 16, 2017.
Gamboa contends that Harris is not applicable because the defendant in Harris had his probation reinstated on modified terms (Harris, supra, 226 Cal.App.3d at p. 143), whereas in this case, according to Gamboa, the trial court reinstated his probation on the same terms. We reject Gamboa's attempt to distinguish Harris. The modified terms of probation in Harris were that the defendant serve a year in jail. (Ibid.) Here, similarly, Gamboa's probation was modified by an order that he spend 90 days in jail. --------
Gamboa contends that the waiver doctrine does not apply here because the error in relying on an impermissible aggravating factor "presents a pure question of law" and "falls within the narrow class of sentencing errors exempt from the waiver rule." (People v. Smith (2001) 24 Cal.4th 849, 853.) We reject the argument. As our Supreme Court has explained, it has "created a narrow exception to the waiver rule for ' "unauthorized sentences" or sentences entered in "excess of jurisdiction." ' . . . Because these sentences 'could not lawfully be imposed under any circumstance in the particular case' . . . , they are reviewable 'regardless of whether an objection or argument was raised in the trial and/or reviewing court.' . . . We deemed appellate intervention appropriate in these cases because the errors presented 'pure questions of law' . . . , and were ' "clear and correctable" independent of any factual issues presented by the record at sentencing.' . . . In other words, obvious legal errors at sentencing that are correctable without referring to factual findings in the record or remanding for further findings are not waivable." (Smith, at p. 852, citations omitted.) However, an error in making a discretionary sentencing choice does not amount to an unauthorized sentence that presents a pure question of law. (Scott, supra, 9 Cal.4th at p. 354.) "[F]act-specific errors in the court's statement of reasons are not readily susceptible of correction on appeal. The reviewing court cannot substitute its reasons for those omitted or misapplied by the trial court, nor can it reweigh valid factors bearing on the decision below." (Id. at p. 355.) The exception to the waiver rule applies only if the error does "not involve a discretionary sentencing choice." (Smith, at p. 853.) Accordingly, we conclude that because no objection was made when the trial court was exercising its discretion to select an upper-term sentence, Gamboa has waived his argument, made for the first time on appeal, that the trial court improperly considered his performance on probation when selecting an upper-term sentence.
In addition, even were we to consider the waived argument, it fails because Gamboa has not established prejudicial error. "Even if a trial court has stated 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. Jones (2009) 178 Cal.App.4th 853, 861.) Remand for resentencing is not warranted when it would be "no more than an idle act." (People v. Williams (1996) 46 Cal.App.4th 1767, 1783.)
A single proper aggravating circumstance will support the imposition of an upper term, even where the trial court has also articulated improper factors. (People v. Osband (1996) 13 Cal.4th 622, 728; People v. Steele (2000) 83 Cal.App.4th 212, 226; People v. Cruz (1995) 38 Cal.App.4th 427, 433-434; People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1735.) Here, the trial court set forth aggravating factors other than Gamboa's poor performance on probation in this case, namely his prior convictions, including crimes of violence, and his prior poor performance on parole and probation in prior cases. Because the trial court's reliance on other aggravating factors was proper and independently supported the trial court's decision to impose the upper term, it is not reasonably probable that a more favorable sentence would have been imposed had the trial court declined to consider Gamboa's performance on probation after the February 16, 2017 reinstatement of probation.
DISPOSITION
The order revoking probation and the judgment are affirmed.
IRION, J. WE CONCUR: NARES, Acting P. J. HALLER, J.