Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SA054790. Cynthia Rayvis, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
Defendant Jimmy Johnson appeals from the trial court’s order imposing a midterm sentence of three years. We affirm.
PROCEDURAL BACKGROUND
An information charged Johnson with assault by means likely to produce great bodily injury. It also alleged that Johnson previously had suffered two felony convictions that qualified as strikes under the Three Strikes law and that he had served two separate prison terms. Johnson pleaded guilty to the assault charge, which subjected him to a maximum sentence of four years, in return for the People’s agreement to dismiss the felony conviction and prison term allegations. Under the agreement, imposition of sentence would be suspended and Johnson would serve 365 days in jail and be placed on three years formal probation. The prosecutor advised Johnson that if he violated the terms of his probation he could be sentenced to the maximum term of four years in prison. Johnson stated that he understood the possible consequences of a probation violation. The trial court accepted Johnson’s plea and sentenced him according to the agreement.
After Johnson twice violated the terms of his probation, the trial court revoked probation and sentenced Johnson to the upper term of four years in prison. Six days later the United States Supreme Court handed down its decision in Cunningham v. California (2007) 549 U.S. 270.
In March 2007, Johnson moved for resentencing arguing that in light of Cunningham he could not be sentenced to the upper term absent a jury finding of facts beyond a reasonable doubt supporting that term. Alternatively, Johnson maintained that, because the allegations of his prior convictions were dismissed as part of his plea bargain, the court could not base the upper term on those same prior convictions. The court rejected both arguments and denied the motion for resentencing.
In an unreported opinion, we held that the trial court’s decision to impose the upper term based on Johnson’s prior convictions did not violate his right to a jury trial and proof beyond a reasonable doubt under Cunningham but that consideration of Johnson’s prior convictions to impose the upper term breached an implicit term of his plea bargain, which required vacating his upper term sentence and remanding the cause for resentencing.
People v. Johnson (Jul. 24, 2008, mod. Aug. 21, 2008, second mod. Sept. 9, 2008, B198098).
The court held a resentencing hearing in October 2008. Johnson’s counsel was present at the hearing but Johnson was not nor did he waive his right to be present. The court resentenced Johnson to the midterm of three years. Johnson appeals this sentence on the ground that he was denied his right to be present at the sentencing hearing.
DISCUSSION
The trial court erred in sentencing Johnson in his absence and without obtaining his waiver of his right to be present (Pen. Code, § 977, subd. (b)) but Johnson has no ground for complaint. In his March 2007 motion for resentencing, Johnson requested that the court “set aside the imposition of high term and sentence defendant to the mid-term of three years....” (Italics added.) Johnson got what he asked for.
DISPOSITION
The order resentencing the defendant is affirmed.
We concur: MALLANO, P. J., JOHNSON, J.