Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CM025422, CM025405
ROBIE, J.
Defendant Stanley Golab admitted twice violating Proposition 36 probation. The trial court found him unamenable to drug treatment and sentenced him to nine years in state prison. Defendant appeals, contending: (1) there was insufficient evidence to support the finding he was unamenable to treatment; (2) imposition of the upper term was based on dual use of facts and failure to take into consideration mitigating factors; and (3) the upper term violated defendant’s Sixth and Fourteenth Amendment rights under the United States Constitution. We will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On March 17, 2007, defendant pled no contest in Yolo County case No. 06-1279 (the Yolo case) to transportation of methamphetamine and was placed on Proposition 36 probation.
Several months later, defendant pled guilty in Butte County case No. CM025422 (the Butte case) to transportation of methamphetamine, and admitted special allegations of a prior 1999 conviction for sexual battery and providing marijuana to a minor, and a prior 2006 conviction for a narcotics offense, in exchange for referral to Proposition 36 sentencing.
Defendant’s plea in the Butte case constituted his first admitted violation of probation in the Yolo case.
At a joint sentencing hearing for the Butte case and the Yolo case (which had been transferred to Butte County), the court suspended imposition of sentence in both cases and placed defendant on Proposition 36 probation pursuant to specified terms and conditions. Defendant was ordered to report to probation on August 17, 2006.
On August 31, 2006, defendant admitted three counts of violating probation, including failure to report to probation. Upon receipt of documentation from Butte County Department of Behavioral Health, the court concluded defendant was unamenable to treatment and terminated Proposition 36 probation. In imposing sentence, the court stated as follows: “The Court . . . will impose the upper term of 4 years on the principal term finding circumstances in aggravation outweigh those in mitigation. In aggravation, the defendant has served a prior prison term. He was on probation at the time of this offense. He may have -- I don’t think he was on parole any longer. His prior performance on probation and parole has been unsatisfactory. The Court can identify no circumstances in mitigation. Therefore, the defendant will be sentenced to the upper term of 4 years on the first violation.” The court imposed a one-year consecutive term (one-third the middle term) on the second violation, plus three years for the prior narcotics conviction and one year for the prior prison term, for an aggregate term of nine years in state prison.
The sentence was stayed pending a hearing on defendant’s motion to withdraw his plea, which motion was ultimately denied by the trial court on January 17, 2007.
Defendant filed a timely notice of appeal.
DISCUSSION
I
There Was Sufficient Evidence Defendant Was Unamenable To Drug Treatment
Defendant contends there was insufficient evidence to support the court’s finding he was unamenable to drug treatment. According to defendant, before a Proposition 36 probationer can be found unamenable to drug treatment, the People must show by a preponderance of evidence the probationer is not submissive or responsive to drug treatment in a residential setting. We need not decide whether defendant’s factual predicate about the law is correct because, even assuming it is, there was sufficient evidence demonstrating defendant was not submissive or responsive to drug treatment in a residential setting.
Penal Code section 1210.1, subdivision (f)(3)(B), provides that when a defendant on Proposition 36 probation violates a drug-related condition for the second time, the trial court may revoke probation if the prosecution establishes by a preponderance of the evidence that defendant poses a danger to the safety of others or is unamenable to drug treatment. “In determining whether a defendant is unamenable to drug treatment, the court may consider, to the extent relevant, whether the defendant (i) has committed a serious violation of rules at the drug treatment program, (ii) has repeatedly committed violations of program rules that inhibit the defendant’s ability to function in the program, or (iii) has continually refused to participate in the program or asked to be removed from the program.” (Section 1210.1, subdivision (f)(3)(B).)
All further statutory references are to the Penal Code unless otherwise indicated.
According to the “unamenability documentation” filed by Butte County, defendant continued to use illegal substances after being reinstated on Proposition 36 probation and failed to appear for a group session. Based on those facts, and “prior problems in treatment,” defendant was deemed to be unamenable. The “prior problems in treatment” were documented in a report by Cyla Nelson of the Butte County Proposition 36 treatment program. The report stated defendant had been referred to the program in April 2005, but was already familiar to treatment staff based on a previous parole referral the year prior. Defendant failed to appear for his first appointment; however, he did reschedule it and complete the interview several days later. He also failed to attend his first group meeting, telling staff he was unaware he needed to attend. He attended subsequent meetings, but was notably “‘arrogant and resistant to instruction,’” telling staff that “drinking . . . was ‘his business’” and claiming his recent use of marijuana was “due to the day being a ‘national pot smoking holiday.’” Although defendant was warned at that time that continued attitude and behavioral problems might result in a determination of unamenability, his attendance at group meetings continued to be sporadic and, when he did attend, he was notably “‘resist[a]nt’” and “‘sarcastic.’” He gave no explanation for some absences; for others he claimed his landscaping work prevented him from attending or said he was unaware of the group meeting schedule. Nelson noted that during her meeting with defendant on August 14, 2006, to review group guidelines and program requirements, defendant displayed “‘poor insight, grandiosity, [and] narcissistic traits’” and “was again requesting special treatment, i[.]e.[,] to leave the state to take care of inherited property, probate concerns.” She further noted her concern that defendant had a hostile and disrespectful attitude and continued to use illegal substances, and concluded as follows: “[Defendant] has not been able to allow himself to engage in the treatment process to any great extent and is . . . lacking the necessary desire to change his life’s direction. Without some willingness to accept help it is doubtful that he will be successful at developing a recovery plan outside of a custodial setting.”
In arguing this evidence was insufficient to show he was not submissive or responsive to drug treatment in a residential setting, defendant argues Nelson failed to clarify the term “custodial.” We disagree. Nelson testified that defendant demonstrated “a poor attitude, sporadic attendance with various reasons, an attempt to manipulate the system, and overall dishonesty with regard to establishing a program of recovery,” indicating he “is not truly available for treatment in the true spirit of Prop[osition] 36.” Given Nelson’s testimony and the overall context of her report, it is a reasonable inference the term “custodial” referred to drug treatment in all Proposition 36 settings including residential settings. Butte County’s determination of unamenability based on the fact that defendant “[p]articipated in all appropriate levels of treatment but continues to abuse substances” supports that inference. (Italics added.)
In light of the evidence we have recounted, we hold there was sufficient evidence to support the trial court’s finding defendant was unamenable to drug treatment under Proposition 36 even if that unamenability had to be tied to evidence that defendant was not submissive or responsive to drug treatment in a residential setting.
II
The Court’s Alleged Dual Use Of Facts Was Harmless And The Court Did Not Err In Finding No Mitigating Circumstances
Defendant contends the court’s imposition of the upper term made improper dual use of his prior prison term and failed to take into consideration two mitigating factors, i.e., that defendant “suffered from addiction to methamphetamine, a mental or physical condition that significantly reduced his culpability for the crime” and “voluntarily acknowledged wrongdoing at an early stage of the criminal process.”
Defendant failed to object on either basis at sentencing and has therefore forfeited his claims on appeal. (People v. Scott (1994) 9 Cal.4th 331, 356; People v. de Soto (1997) 54 Cal.App.4th 1, 7-8.)
Defendant concedes he did not object, but argues he had no meaningful opportunity to do so because the court was focused on the various motions he had filed. The record reflects otherwise. Immediately following the court’s imposition of sentence, defendant called the court’s attention to his various motions on which the court had yet to rule. In arguing his motion to represent himself and his request for additional time to present evidence in support of his motion to withdraw his plea, defendant at all times was engaged in a colloquy with the court and had ample opportunity to object to the sentence imposed. He did not.
Defendant argues further his failure to object was the result of “inadequate assistance of counsel.” Generally, a court is prohibited from using a fact both to impose an aggravated term and enhance a sentence. (§ 1170, subd. (b).) However, an objection here would have been futile (see People v. Price (1991) 1 Cal.4th 324, 386-387), because the court stated other valid reasons to impose the upper term, namely defendant’s unsatisfactory prior performance on parole and probation and defendant’s status on probation at the time of the offense. One aggravating circumstance will suffice to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 732.) On this record, there is no reasonable probability that defendant would have received a more favorable sentence absent the court’s dual use of facts. (People v. Coleman (1989) 48 Cal.3d 112, 166.)
Defendant was represented by counsel at the time he was sentenced. However, the court then granted defendant’s motion to represent himself and stayed the sentence pending hearing on defendant’s motion to withdraw his plea.
As to defendant’s claim the court failed to take into account his alleged mitigating circumstances, the record does not support it. While defendant entered pleas early on both cases, he quickly sought to withdraw his guilty plea once the court found him unamenable to treatment and terminated probation. As for defendant’s addiction to methamphetamine, the probation report detailed defendant’s drug use and criminal history of drug-related offenses and concluded there were no circumstances in mitigation. “[D]rug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511; People v. Reyes (1987) 195 Cal.App.3d 957, 963-964 [addiction should not be considered as a circumstance in mitigation where “addiction has simply provided the defendant with a continuing incentive or excuse to commit crimes”].) The court reviewed the report and agreed. We find no error.
III
The Court’s Imposition Of The Upper Term Did Not Violate Defendant’s Constitutional Rights
Defendant contends imposition of the upper term violated his Sixth and Fourteenth Amendment rights under the federal Constitution because the court relied in part on a nonrecidivist factor (i.e., defendant’s prior performance on parole or probation was unsatisfactory) that was not admitted by defendant or found true beyond a reasonable doubt by a jury. He argues we should consider this contention despite his failure to raise it in the trial court. Because the People do not urge forfeiture, we address the issue.
Defendant first urges that the aggravating circumstance of his prior unsatisfactory performance on probation does not come within the “fact of a prior conviction” exception stated in Cunningham v. California (2007) 549 U.S. 270, ___ [166 L.Ed.2d 856, 873]. The California Supreme Court recently resolved that issue in People v. Towne (2008) 44 Cal.4th 63, stating as follows: “The federal constitutional right to a jury trial and proof beyond a reasonable doubt on aggravating circumstances does not extend to the circumstance that a defendant was on probation or parole at the time of the offense or has served a prior prison term.” (Id. at p. 79.) A defendant who committed another offense while on probation demonstrates he is less amenable to rehabilitation and, accordingly, more deserving of punishment. (Id. at p. 80.) “Whether the aggravating circumstance of a defendant’s prior unsatisfactory performance on probation or parole comes within the Almendarez-Torres exception [factor related to recidivism could be determined by reference to court records] . . . will depend upon the evidence by which that circumstance is established in a particular case. In some instances, the defendant’s unsatisfactory performance on probation or parole is proved by evidence demonstrating that, while previously on probation or parole, he committed and was convicted of new offenses.” (Id. at p. 82.)
Almendarez-Torres v. United States (1998) 523 U.S. 224, 234-235, 243-244 [140 L.Ed.2d 350, 361-363, 368-369].
Here, the record shows defendant committed a criminal offense -- transportation of methamphetamine in Butte County -- while on probation for the Yolo County offense. He was reinstated on probation in both cases, then admitted violating probation again. “When a defendant’s prior unsatisfactory performance on probation or parole is established by his or her record of prior convictions, it seems beyond debate that the aggravating circumstance is included within the Almendarez-Torres exception and that the right to a jury trial does not apply.” (People v. Towne, supra, 44 Cal.4th at p. 82.) Defendant’s probation was violated specifically as a result of his conviction in the current case. Thus, “[t]he mere recitation of [defendant’s] dates of conviction and releases on [probation] [citation] demonstrate, as a matter of law, that he committed new offenses while on [probation]. Thus he performed poorly on [probation]. [Citation.] No trial court or jury could rationally find otherwise. As a result, these factors fall within the Apprendi exception to the jury trial right. The trial court did not violate [defendant]’s Sixth Amendment rights by imposing the upper term without these findings by a jury.” (People v. Yim (2007) 152 Cal.App.4th 366, 371.)
Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435].
Defendant was not entitled to a jury trial on the matter of unsatisfactory performance on probation, and his unsatisfactory performance on probation supports the sentence.
Defendant contends he suffered prejudice due to the trial court’s improper use of his unsatisfactory prior performance on probation as an aggravating factor. Acknowledging the holding in Black that the court may rely on prior convictions and prior prison terms in imposing the upper term, without submitting those factors to a jury (People v. Black (2007) 41 Cal.4th 799, 818), he argues that case was wrongly decided. Defendant rightly concedes, however, that we are bound by the decisions of our state’s highest court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In any event, the court also relied on the additional fact that defendant was on probation at the time of the offense, which defendant admitted at trial and concedes on appeal to be a valid aggravating factor, and found no mitigating circumstances. In light of that, defendant has not shown prejudice. The court did not err in imposing the upper term.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J. RAYE, J.