Opinion
Super. Ct. No. 06F1703
NOT TO BE PUBLISHED
NICHOLSON, Acting P.J.
Defendant Jeana Carol Glover pled guilty to driving with a blood-alcohol level of .08 or more percent, with four prior driving under the influence convictions (Veh. Code, §§ 23152, subd. (b), 23550) and admitted service of a prior prison term (Pen. Code, § 667.5, subd. (b)), in exchange for the dismissal of other counts and a maximum prison term of four years.
Following a sentencing hearing, the court imposed a term of four years -- the upper term of three years for the driving under the influence plus one year for the prior prison term. The court chose the upper term because she served a prior prison term, she was either on probation or parole at the time of the instant offense, and her performance on probation or parole had been unsatisfactory.
On appeal, defendant contends (1) the trial court’s use of the aggravating factors to increase her sentence violated her right to have a jury determine such factors under a reasonable doubt standard as set forth in Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403], and (2) remand for a jury retrial is inappropriate because the Legislature has provided no mechanism for such a procedure.
The People respond that, for various reasons, the defendant has forfeited the issue for appeal, and, in any event, any error was harmless.
We conclude that defendant waived her right to a trial by jury on the aggravating factors, but not for any reason advanced by the People. Instead, defendant’s change of plea form, which apparently neither party saw, expressly acknowledged that defendant was waiving her right to a jury trial on sentencing factors and consenting “to the judge determining, by proof beyond a reasonable doubt, the existence of any aggravating sentencing factors within the judge’s discretion.”
DISPOSITION
The judgment is affirmed.
We concur: RAYE, J., ROBIE, J.