Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 197941
Lambden, J.
Defendant George Johnson appeals from the court’s judgment revoking his probation and imposing a three-year upper term sentence following a contested revocation hearing. We affirm the judgment.
BACKGROUND
In February 2006, defendant entered a plea of guilty to unlawful taking of a vehicle in violation of Vehicle Code section 10851, subdivision (a) (section 10851). Later that same month, the court suspended imposition of sentence and placed defendant on probation for three years, provided that he serve one year in the county jail, which could be served in a residential treatment program, and pay various fines and fees.
In April 2006, the San Francisco District Attorney moved to revoke probation, and the court subsequently conducted a contested hearing. At the beginning of the contested hearing, defense counsel stated he had just been told for the first time about some potential evidence, for which he had not received any discovery. He asked for a continuance in order to further review the information so he could conduct effective cross-examination. The court denied his request, stating:
“Well, you may have the right to further evidence or there may be evidentiary sanctions based on what I’ve been told at two o’clock off the record. Counsel both told me that the victim of this matter, when the car was returned to him, looked in the car and found property not his own, including items that appear to be stolen checkbooks, credit cards, things like that, along with a set of keys not his. . . . The district attorney credibly claims that she has no evidence of any such return to the police department in the form of a police report. We will investigate these matters in the hearing and what appropriate remedies need to be taken will be taken. Right now we have a civilian victim. His testimony will be taken.”
At the hearing, San Francisco Police Officer Joshua Olson testified he pulled over a dark green Nissan pickup truck driven by defendant on April 9, 2006, after noticing the truck’s front and rear license plates were different, and discovering each plate had been issued for a different Nissan pickup truck, neither of which appeared to be the truck before him. Defendant volunteered to Olson that the pickup did not belong to him before Olson told him the reason for the stop. Olson, after discovering the truck had been stolen and that defendant did not have a driver’s license, took defendant into custody; Olson left the keys in the truck’s ignition so it could be taken away.
The owner of the Nissan pickup truck, Philip, testified he left his truck parked and locked on a San Francisco street in early April 2006, taking his keys with him. His truck was gone when he returned, and he reported its disappearance to the police. He had matching license plates on the truck’s front and rear. When the police notified him that his truck had been found, he went to an impound lot, where he found a key in the ignition that was attached to a key ring with a dozen or more Nissan keys he did not recognize. The truck’s door panels and seats were cut, the gear shift ground to bits and scattered around, the hood latch broken, and the driver’s side sagging as though there was a problem with the suspension. Some of his personal items were missing. He drove the truck home, using the keys that were in the ignition, which was very loose in the steering column. A few days later, he went through the truck’s interior and found a number of articles that did not belong to him, including some checkbooks, credit cards, driver’s licenses, gift cards, a wallet, clothing, and other items. He gave the property he found, except for the keys, to the police at the Bayview police station. At the time, he inadvertently dropped the keys somewhere in the truck. He kept them after discovering his error.
At the conclusion of the hearing testimony, defense counsel moved to strike the testimony of the witnesses because he had not been provided with discovery regarding the items Philip turned into the police, or the keys Philip had kept. The court denied this motion, as we discuss further, post. The court indicated it did not consider the evidence of other items found in the car significant. The prosecutor stated she had no knowledge prior to the day of the hearing about the property Philip had turned into the police, or the keys. The court nonetheless continued the hearing so that an investigation could be conducted into what happened to the property turned into the police, and so the keys could be obtained.
When the hearing reconvened a couple of weeks later, defense counsel stipulated that the ring of keys provided by Philip was in the ignition in the tow yard, and acknowledged only that the keys might or might not be those that were in the ignition at the time of defendant’s arrest. There were about a dozen keys, three of which looked like new car keys with a black covering, and the remainder like car key copies. The court stated the missing property “was not booked into evidence under the original stolen auto report number. So that’s a loss.”
The trial court found “sufficient cause to believe that the defendant is in willful violation of his probation, and that he knowingly operated a stolen vehicle in violation of [section] 10851. . . .” The court, for reasons we also discuss further, post, sentenced defendant to the upper term of three years, minus custody and conduct credits totaling 254 days. This timely appeal followed.
DISCUSSION
I. Evidence of Defendant’s Probation Violation
Defendant contends there is insufficient evidence that he violated probation by driving a stolen vehicle, since there is not substantial evidence that he had the intent to deprive the owner of the vehicle, Philip, of title and possession. He also argues that his state and federal due process rights were violated by the court’s ruling. His arguments lack merit.
A court is authorized to revoke probation “if the interests of justice so require and the court, in its judgment, has reason to believe . . . that the person has violated any of the conditions of his or her probation . . . .” (Pen. Code, § 1203.2, subd. (a).)
The trial court found that defendant had violated section 10851, which states in relevant part: “Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense . . . .” (§ 10851, subd. (a).)
“The elements necessary to establish a violation of section 10851 . . . are the defendant’s driving or taking of a vehicle belonging to another person, without the owner’s consent, and with specific intent to permanently or temporarily deprive the owner of title or possession.” (People v. Windham (1987) 194 Cal.App.3d 1580, 1590.)
We review the trial court’s probation revocation ruling pursuant to an abuse of discretion standard. (People v. Self (1991) 233 Cal.App.3d 414, 417.) “It has been long recognized that the Legislature, through [Penal Code section 1203.2], intended to give trial courts very broad discretion in determining whether a probationer has violated probation.” (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) “ ‘[O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation . . . .’ ” (People v. Lippner (1933) 219 Cal. 395, quoted approvingly in People v. Rodriguez, supra, 51 Cal.3d at p. 443.) The facts in a probation revocation hearing are provable by a preponderance of the evidence standard. (Rodriguez, at pp. 441-442.) Although knowledge that the vehicle was stolen is not an element of the offense, it is “one of various alternative factors evidencing an intent to deprive the owner of title and possession.” (People v. Green (1995) 34 Cal.App.4th 165, 180.) “ ‘Specific intent to deprive the owner of possession of his car may be inferred from all the facts and circumstances of the particular case. Once the unlawful taking of the vehicle has been established, possession of the recently taken vehicle by the defendant with slight corroboration through statements or conduct tending to show guilt is sufficient to sustain a conviction of . . . section 10851.’ ” (Id. at p. 181.)
Defendant appears to assert incorrectly that the trial court was required to find a violation of section 10851 beyond a reasonable doubt, and that we are to review the court’s ruling pursuant to a substantial evidence standard.
The trial court did not abuse its discretion when it revoked defendant’s probation. A preponderance of the evidence, which was undisputed, supported the court’s determination that defendant had violated section 10851. The evidence indicates, or supports the reasonable inference, that defendant was stopped driving the truck just eight days after its theft; that the truck’s interior was ripped up, its hood latch broken, and its ignition loosened; that it displayed two different license plates, neither of which were issued for the vehicle; that defendant volunteered defensively to the officer that the car did not belong to him before knowing the purpose of the stop; and that defendant accessed the car using a key ring that contained 12 different Nissan keys. Although any one of these circumstances arguably might not be sufficient to support the trial court’s ruling in a different situation, when considering them together it is difficult, if not impossible, to conclude defendant was unaware he was driving a stolen truck. (See, e.g., People v. Green, supra, 34 Cal.App.4th at p. 181 [“evidence of a tampered ignition . . . when coupled with other evidence may support a finding of intent to deprive the owner of possession”].) There was sufficient evidentiary support for the trial court’s exercise of its discretion.
II. Defendant’s Request for a Continuance
Defendant argues the trial court abused its discretion in denying his request for a continuance and his motion to strike the witnesses’ testimony, which defendant made because of the information about the property and keys first discussed with him on the day of the hearing. We conclude the court did not abuse its discretion.
A party has “minimal due process” protections in a probation revocation proceeding. (People v. Mosley (1988) 198 Cal.App.3d 1167, 1174.) Nonetheless, to satisfy the due process clause of the Fourteenth Amendment, “ ‘final revocation of probation must be preceded by a hearing . . . . The probationer is entitled to written notice of the claimed violations of his probation; disclosure of the evidence against him; an opportunity to be heard in person and to present witnesses and documentary evidence; a neutral hearing body; and a written statement by the factfinder as to the evidence relied on and the reasons for revoking probation.’ ” (Black v. Romano (1985) 471 U.S. 606, quoted in People v. Mosley, supra, 198 Cal.App.3d at p. 1173.) Thus, a court’s offer to consider a motion for continuance by defense counsel at a probation revocation hearing “evidenced the court’s intention to afford [defendant] a fair opportunity to prepare and defend against allegations of which he had no notice and thus to preserve [defendant’s] due process rights.” (People v. Felix (1986) 178 Cal.App.3d 1168, 1172.)
Defendant’s appellate counsel, in discussing a defendant’s due process rights in a probation revocation proceeding, repeatedly misquotes case law. Specifically, in discussing People v. Sarazzawski (1945) 27 Cal.2d 7, 17, counsel substitutes “a defendant has a right to reasonable opportunity to prepare for a trial . . .” with “a defendant has a right to [a] reasonable opportunity to prepare for a hearing on the motion to revoke probation . . .,” and “. . . no such thing as a legal trial . . .” with “. . . no such thing as a legal hearing on the motion to revoke probation . . . .” (Italics added.) In discussing People v. Cruz (1978) 83 Cal.App.3d 308, 326, counsel substitutes “. . . deny a defendant a full and fair trial” with “. . . deny a defendant a full and fair hearing on the motion to revoke probation.” (Italics added.) We might view one misrepresentation as an understandable error; however such multiple misrepresentations, whether deliberate or inadvertent, inexcusably demean our review process. Counsel’s misrepresentations are of no consequence to our rulings herein.
Generally, “the decision whether or not to grant a continuance of a matter rests within the sound discretion of the trial court. [Citations.] The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked.” (People v. Beames (2007) 40 Cal.4th 907, 920.)
Penal Code section 1050 generally governs continuances of hearings in criminal proceedings. Penal Code section 1050, subdivision (a), states in relevant part that “the people, the defendant, and the victims and other witnesses have the right to an expeditious disposition, and to that end it shall be the duty of all courts and judicial officers and of all counsel, both for the prosecution and the defense, to expedite these proceedings to the greatest degree that is consistent with the ends of justice.” (Ibid.) Counsel seeking a continuance at a hearing must demonstrate good cause for doing so. (Id., subd (e).) Among other things, “[w]hen deciding whether or not good cause for a continuance has been shown, the court shall consider the general convenience and prior commitments of all witnesses, including peace officers.” (Id., subd (g)(1).)
Here, as we have already indicated, the court denied defendant’s request for a continuance at the start of the contested hearing while stating to defense counsel, “you may have the right to further evidence or there may be evidentiary sanctions based on what I’ve been told . . . . We will investigate these matters in the hearing and what appropriate remedies need to be taken will be taken. Right now, we have a civilian victim. His testimony will be taken.”
Later, after the court denied defendant’s motion to strike the witnesses’ testimony, the court asked defense counsel what he would like to do to conclude the hearing. Counsel, after conferring with defendant, stated, “We’ll just go forward.” The court then, on its own initiative, continued the hearing for two weeks so that the matters raised regarding the property could be investigated and the keys obtained. Defense counsel did not request that the witnesses be made available again.
Thus, the record indicates the court’s denial of a continuance at the beginning of the contested hearing did not foreclose a continuance as a possible remedy after testimony was heard about the evidentiary issues raised; defendant failed to seek a continuance at the end of the hearing, but the court ordered one anyway for further investigation into the very issues defendant had raised; and defendant failed to pursue further cross-examinations of the witnesses thereafter. Under these circumstances, we fail to see how defendant was affected in any negative way by the trial court’s initial denial of his request for a continuance at the beginning of the hearing. Moreover, the court’s query to defense counsel at the hearing’s end plainly invited a motion to continue the hearing, thereby protecting defendant’s due process rights. (People v. Felix, supra, 178 Cal.App.3d at p. 1172.) In effect, defendant was given the opportunity, but declined, to pursue the relief he sought—cross-examination of the witnesses after further investigation into the evidentiary issues his counsel raised. Accordingly, the trial court did not abuse its discretion regarding defendant’s initial request for a continuance.
III. Discovery Issues
Defendant also argues the court erred by failing to consider a “wide range” of sanctions for the prosecution’s failure to disclose the evidence Philip found in the car, as well as for the “loss or destruction” of this evidence, and that this “loss or destruction” violated defendant’s due process rights under both the federal and state Constitution. These arguments also lack merit.
As we have already indicated, a defendant in a probation revocation hearing is entitled to disclosure of the evidence against him, as well as the right to present witnesses and documentary evidence. (Black v. Romano, supra, 471 U.S. 606, quoted in People v. Mosley, supra, 198 Cal.App.3d at p. 1173.) Nonetheless, we question the scope of the parties’ discovery obligations in such proceedings. (Cf. Jones v. Superior Court (2004) 115 Cal.App.4th 48, 50-51 [Proposition 115 reciprocal discovery provisions do not apply to probation revocation hearing]; Pipes & Gagen, Cal. Criminal Discovery (2006 supp.) § 1:115, pp. 123-124 [open question whether probationers are entitled to Brady disclosure in connection with probation revocation hearing; authors opine the rule does not apply].) The parties to this appeal, however, assume the discovery obligations for criminal trials apply to them. For the sake of argument, we shall as well. Even under these standards, there was no court error or due process violation here.
As defendant indicates, “[w]e generally review a trial court’s ruling on matters regarding discovery under an abuse of discretion standard.” (People v. Ayala (2000) 23 Cal.4th 225, 299.) Fundamental fairness “require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense,” including the right to exculpatory evidence. (California v. Trombetta (1984) 467 U.S. 479, 485.) A defendant’s due process rights are violated when the state destroys evidence that (1) has “an exculpatory value that was apparent before the evidence was destroyed” and (2) is “of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (California v. Trombetta, supra, 467 U.S. at p. 489.)
The Attorney General acknowledges that in criminal trials, the prosecution has a statutory duty to disclose material evidence. (See Pen. Code, § 1054 et seq.) “[G]enerally, a trial court may, in the exercise of its discretion, ‘consider a wide range of sanctions’ in response to the prosecution’s violation of a discovery order.” (People v. Wimberly (1992) 5 Cal.App.4th 773, 792.) However, “ ‘[t]he remedy for noncompliance with a discovery order should not be broader than is necessary.’ ” (Ibid.)
The Attorney General also acknowledges that, under the federal Constitution, the prosecution has an obligation to disclose exculpatory evidence for trials and failure to do so may violate due process where the evidence is material. (Kyles v. Whitley (1995) 514 U.S. 419, 435; Brady v. Maryland (1963) 373 U.S. 83, 87.) To establish a Brady claim, the evidence must be (1) exculpatory; (2) suppressed by the state; and (3) resulting in prejudice to the defense. (Strickler v. Greene (1999) 527 U.S. 263, 281-282.)
The parties ignore, however, that there was no evidence anything was destroyed or withheld from the defense. The California Supreme Court has made clear that “ ‘ “[u]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” ’ ” (People v. Ochoa (1998) 19 Cal.4th 353, 417.)
Furthermore, the only evidence about the nature of the property, Philip’s testimony, supports the court’s conclusion that the property was insignificant. Philip stated: “Um, there were, um, there were checkbooks, um, credit cards, driver’s licenses, um, gift cards. Um, wallet. Um, odds and ends. Clothing. I mean there was all kinds. Really there was all kinds of junk that was strewn about the car as well.”
This testimony indicates the property did not have any significant direct or indirect bearing on the main issue before the court, i.e., whether defendant understood that he was driving a stolen car. We find no merit in defendant’s argument that “evidence of property found in the pickup belonging to third parties would have material exculpatory value and could lead to the discovery of persons who had possession of the vehicle and whether appellant had any reason to know it was stolen.” Nor does defendant explain why he, the driver of the vehicle, was unable to discover information about other persons who might have had possession of the vehicle, whether or not the physical evidence had not been lost, or why he was unable to have an expert examine the keys once the court ordered a continuance of the hearing.
In any event, we conclude the trial court did not abuse its discretion in denying defendant’s request for sanctions nor violate defendant’s constitutional rights. Defendant also has failed to establish the loss of the property by the police violated his due process rights. Defendant has not shown how he was harmed by the prosecution’s failure to disclose its information about the property and keys until the day of the hearing in light of the court’s continuance, that the lost property involved had an “exculpatory value that was apparent” before it was lost (California v. Trombetta, supra, 467 U.S. at p. 489) or, thereafter, that the lost property was material, or that there was any bad faith on the part of the police.
IV. Sentencing Issues
Regarding his sentencing, defendant argues he was deprived of his federal constitutional rights under the Fifth and Fourteenth Amendments to notice of the sentencing factors used against him, his Sixth and Fourteenth Amendment rights to a jury trial and due process, and his Fifth and Fourteenth Amendment rights to the application of the “proof beyond a reasonable doubt” standard. These arguments are without merit.
We reject the Attorney General’s argument that defendant waived his right to challenge his upper term sentence by his failure to object to the court’s sentencing procedures at trial. Such objections would have been futile in light of People v. Black (2005) 35 Cal.4th 1238 (Black I). “An objection in the trial court is not required if it would have been futile.” (People v. Sandoval (July 19, 2007, S148917) ___ Cal.4th ___ [2007 Cal. Lexis 7606, *15, fn. 4] [finding an objection below would have been futile in light of Black I].)
A. Notice
Defendant argues he was entitled to notice in the charging document that the prosecution would pursue additional sentencing factors on which the court relied to apply the aggravated sentence This is not correct, as indicated in Almendarez-Torres v. United States (1988) 523 U.S. 224, 239-247. We decline defendant’s invitation to find that this case was wrongly decided based on Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).
Defendant’s argument is also unsupported by the record, which indicates that the prosecution did not pursue “additional sentencing factors” in an effort to have defendant sentenced to the aggravated term. Rather, the prosecution requested that defendant be sentenced to the middle term. The court exercised its discretion under California’s Determinate Sentencing Law (DSL), which we discuss further, post, to apply the aggravated term.
In any event, the record indicates defendant received notice prior to his entry of his guilty plea that he could be sentenced without a trial to as much as three years, which was the upper term. His attorney stated in open court, “I have advised [defendant] the legal consequences of a guilty plea to the charge and the punishment for the offense is 16 months, two or three years in State Prison.” (Italics added.) Later in this same hearing, the court specifically asked defendant, “Do you realize if you are granted probation . . . and you violate any of the terms of that probation you may be sentenced to State Prison without a trial?” Defendant replied, “Yes, ma’am.” Defendant in effect had notice the court could apply DSL sentencing factors in his case.
B. Sentencing
Defendant argues his sentence must be reversed because, pursuant to Blakely v. Washington (2004) 542 U.S. 296 (Blakely), the trial court committed constitutional error by imposing an upper term sentence based on aggravating factors that were not supported by jury findings made pursuant to a beyond the reasonable doubt standard. The United States and California Supreme Courts have recently made clear that defendant’s argument is incorrect.
In Blakely, supra, 542 U.S. 296, the United States Supreme Court held that a Washington State court denied a criminal defendant his constitutional rights to a jury trial by increasing the defendant’s sentence for second degree kidnapping from the “standard range” of 49 to 53 months to 90 months based on the trial court’s finding that the defendant acted with “ ‘deliberate cruelty.’ ” (Blakely, supra, 542 U.S. at pp. 303-304.) The Blakely court found that the state court violated the rule previously announced in Apprendi, supra, 530 U.S. 466, that “ ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ ” (Blakely,at p. 301.) In reaching this conclusion, the court clarified that, for Apprendi purposes, the “statutory maximum” is “not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose, without any additional findings.” (Blakely, at pp. 303-304.)
The California Supreme Court, in Black I, supra, 35 Cal.4th 1238, held that “the judicial fact finding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant’s Sixth Amendment right to a jury trial. (Black I, at p. 1244.) In reaching this conclusion, the Black I court expressly stated that, under California’s sentencing system, “the upper term is the ‘statutory maximum’ and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the principles set forth in Apprendi[, supra, 530 U.S. 466], Blakely[, supra, 542 U.S. 296], and [United States v.] Booker [(2005) 543 U.S. 220].” (Black I, supra, 35 Cal.4th at p. 1254.)
On January 22, 2007, the United States Supreme Court issued Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), in which the court held that Black I, supra, 35 Cal.4th 1238,was a misapplication of Blakely, supra, 542 U.S. 296. The United States Supreme Court made clear that a trial court was entitled to determine the fact of a prior conviction of defendant. (Cunningham, supra, 127 S.Ct. at p. 860 [“the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant” (italics added)].) However, it did not directly address whether a trial court’s finding of numerous prior convictions was included within this entitlement.
Although defendant filed his opening brief prior to Cunningham, both the Attorney General and defendant subsequently briefed its impact on this case, which arguments we have considered.
On July 19, 2007, the California Supreme Court issued People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ [2007 Cal. Lexis 7604] (Black II), in which our Supreme Court determined a number of issues in light of Cunningham, supra, 127 S.Ct. 856. Among other things, our Supreme Court held “that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi[, supra, 530 U.S. 466] and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black II, supra, ___ Cal.4th at p. ___ [2007 Cal. Lexis 7604, *19].) The court also held that a trial court may impose an upper term sentence based on its finding, under a preponderance of the evidence standard, that a defendant’s criminal history includes numerous prior convictions. (Black II, supra, ___ Cal.4th at p. ___ [2007 Cal. Lexis 7604, *36-41].) Our Supreme Court reasoned:
“The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ (Cal. Rules of Court, rule 4.421(b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is ‘quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ ” (Black II, supra, ___ Cal.4th at p. ___ [2007 Cal. Lexis 7604, *39].)
Our Supreme Court also rejected Black’s argument that the trial court’s reliance on its findings about his criminal history violated his due process rights because the trial court presumably made its findings by applying a proof by a “preponderance of the evidence” standard pursuant to California Rules of Court, rule 4.420(b), rather than a “beyond a reasonable doubt” standard. The court explained:
“ ‘The United States Supreme Court has stated the rule and the Almendarez-Torres exception as follows: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.) The high court never has suggested that the requirement of proof beyond a reasonable doubt could be severed from the right to jury trial for purposes of applying the foregoing rule or its exception. (See, e.g., United States v. Salazar (9th Cir. 2006) 458 F.3d 851, 859 [“[T]he fact of a prior conviction may be found by a district court using a preponderance of the evidence standard”]; United States v. Barrero (2d Cir. 2005) 425 F.3d 154, 157 [“[I]t is well established that a court may find the fact of a prior conviction by a preponderance of the evidence”].)’ ” (Black II, supra, ___ Cal.4th at p. ___ [2007 Cal. Lexis 7604, *40-41].)
At defendant’s sentencing hearing, the court stated it had reviewed a consolidated pre-sentencing report, which it assumed incorporated a previous report related to a “previous grant of probation which was terminated as being unsuccessfully completed.” The court then stated:
“That report indicates that in 1973, defendant was convicted of possession of stolen property. 1975, he was convicted of unauthorized use of a vehicle. 1977, possession of stolen property conviction. 1977, stolen motor vehicle conviction in Idaho.
“1979, conviction for 11377(a) and 10851. August 15, 1979, a warrant arrest for violation of 10851. May have been in connection with the probation grant. 1982, Idaho. Some offense involving grand theft and the disposition is indecipherable to me. . . .
“He was then thereafter committed to the State Department of Corrections in Idaho for grand theft, 1984. Committed to the penitentiary for grand theft in Washington for six years, 1985. An escape arrest from Idaho Department of Corrections, 1991. Conviction for 487[.3], committed to State Prison . . . for 16 months. Various parole violations thereafter.
“1992, convicted of grant theft of a vehicle or vessel in Los Angeles. 1993, San Francisco, convicted of 10851. 1996, San Francisco, convicted of 10851. January 27, '02, convicted of 10851. April 10 of '03, convicted of 10851.
“This would not . . . appear to be a case in which the mitigated term would be called for based on his record of prior similar offenses.
“Based on the probation, Consolidated Probation Report and the record of convictions therein, the defendant is committed to the Department of Corrections for the aggravated term of three years for 10851 . . . .
“The reason for the court’s sentencing choice is that the defendant’s prior convictions are numerous and his prior performance on parole or probation has been unsatisfactory. The court finds no circumstances in mitigation except in this particular instance he was convicted by plea of guilty which constitutes an early admission of guilt.
“The factors in aggravation substantially outweigh the circumstances in mitigation and therefore the aggravated term is imposed.”
Thus, the trial court chose the upper term based on two aggravating factors enumerated in the DSL, regarding defendant’s convictions record and his prior performance on parole or probation. (Cal. Rules of Court, rules 4.421(b)(2) & (5).) Pursuant to Black II, supra, ___ Cal.4th ___ [2007 Cal. Lexis 7604], defendant was eligible for an upper term sentence based solely on his prior convictions, which, as the court’s summary quoted above demonstrates, were plainly numerous. Therefore, the court did not violate his constitutional rights when it imposed such a sentence based on both his prior convictions and his prior performance on parole or probation. (Black II, supra, ___ Cal.4th at p. ___ [2007 Cal. Lexis 7604, *19, 36-41].)
Our Supreme Court has not directly addressed whether or not a trial court may impose an upper term sentence based on findings about the defendant’s prior performance on parole or probation. The court has asked for additional briefing on this question in a case pending before it. (People v. Towne (February 7, 2007, S125677) ___ Cal.4th ___ [2007 Cal. Lexis 1437].) We have no need to address the issue in light of Black II, supra, ___ Cal.4th ___ [2007 Cal. Lexis 7604].
Disposition
The judgment is affirmed.
We concur: Haerle, Acting P. J., Richman, J.