Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FMB008330, Bert L. Swift, Judge.
Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut J.
Defendant appeals from a three-year prison sentence imposed after she violated the terms of her drug court probation. Defendant had been placed originally on probation pursuant to Proposition 36 (Pen. Code, §§ 1210, et seq.), but probation was revoked in October 2006 after the trial court found she was not amenable to Proposition 36 probation, and referred her to drug court probation. Two years later, she suffered the current violation of probation. Defendant argues the trial court (1) violated her due process rights in 2006 by revoking her Proposition 36 probation; (2) violated her due process right to individualized sentencing by imposing the aggravated term based on a court policy; (3) erred by not considering factors in mitigation or aggravation as they existed at the time of the original grant of probation; and (4) abused its discretion in imposing the upper term. We affirm.
The parties agree that a certificate of probable cause is not required.
BACKGROUND
On June 13, 2006, defendant was charged with possession of a deadly weapon (Pen. ode, § 12020, subd. (a)(1), count 1) and possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a), count 2.) Defendant pled guilty to the drug possession count, and on July 17, 2006, defendant was placed on probation pursuant to the drug treatment provisions of Proposition 36. (Pen. Code, §§ 1210, et seq.)
Except where otherwise indicated, all further statutory references are to the Penal Code.
We detail the history of defendant’s compliance with probation in order to address the issues raised on appeal.
A week after being granted probation, defendant failed to appear at a probation review hearing, so the trial court summarily revoked her Proposition 36 probation and issued a bench warrant for her arrest. A hearing on the revocation of probation was set for August 7, 2006, when the probation department informed the court it had not filed a petition to revoke probation because defendant had turned herself in. Proposition 36 probation was reinstated and a progress review hearing was scheduled for August 21, 2006.
On August 17, 2006, the probation department filed a petition to revoke probation on the ground she had violated her Proposition 36 probation by failing to report to the probation officer and drug test on August 1, 2006, and she tested positive for methamphetamine on two occasions: August 9 and 11, 2006. On August 21, 2006, defendant failed to appear at the progress hearing so another bench warrant was issued for defendant’s arrest and probation was revoked.
On October 12, 2006, the probation department filed an amended petition to revoke probation, adding allegations that defendant had failed to report to probation every Tuesday and Friday between August 7 and October 11, 2006, and failing to attend any meetings at the Panorama Ranch treatment program since August 1, 2006, resulting in her termination from that program on September 6, 2006. At the probation review hearing conducted that date, defendant denied the allegations of the revocation petition. On October 16, 2006, the trial court revoked probation and found defendant was not amenable to Proposition 36 probation because she had refused treatment.
At sentencing on November 6, 2006, the court granted probation under the drug court treatment program (drug court). Defendant was ordered to comply with the terms of probation, be responsible for all fees, and attend all appointments. Further, defendant waived her right to any presentence conduct credits. (§ 4019.) However, on November 12, 2006, defendant was placed “on contract” for testing positive for methamphetamine. She was referred to the Panorama Ranch residential treatment program for 90 days after she admitted using methamphetamine.
The terms of the drug court treatment program also included an agreement by defendant waiving the requirement that the probation department file a formal petition to revoke probation, as well as a waiver of defendant’s right to a probation violation hearing, pursuant to People v. Vickers (1972) 8 Cal.3d 451, 459-460.
Between November 27, 2006, and September 2007, defendant appeared at numerous drug court progress review hearings. However, in February 2007, defendant was discharged from the residential program for rule violations without successful completion, and in September 2007, the treatment providers informed the court that defendant failed to stay current with program fees and community service hours. On October 29, 2007, the court ordered defendant to either get a job by the next week, or complete 25 hours of community service. When she failed to do so, the court sanctioned defendant with one weekend in jail. On December 2, 2007, defendant’s community service hours were reduced to 20 hours.
Although the clerk’s minutes of January 14, 2008, reflect that defendant provided proof of performing her community service requirement of probation, on January 17, 2008, defendant admitted she signed her own community service hours and was taken into custody. The supplemental probation officer’s report alleged defendant had failed to comply with probation term Nos. 3 [cooperate with probation officer and follow directives], 17 [perform community service as directed], and 24 [participate in drug court rehabilitation program]. At sentencing, the court revoked probation, and sentenced defendant to the upper term of three years. Defendant appeals from the sentence.
DISCUSSION
1. Defendant’s Proposition 36 Probation was Properly Revoked Where Defendant’s Persistent Failure to Enroll and Participate In Drug Treatment Constituted a Refusal of Treatment.
Defendant argues her Proposition 36 probation was improperly and prematurely revoked in October 2006, because the state moved only once to revoke probation and there was no finding she posed a danger to society, in violation of Proposition 36. (§ 1210.1.) She claims the revocation of probation on a first violation of drug-related conditions of probation violated her due process rights. We disagree.
Under Proposition 36 as it existed at the time of defendant’s conviction, if a defendant is convicted of a nonviolent drug possession offense, the trial court must grant probation and drug treatment, and may not impose incarceration as a condition of probation. (§ 1210.1, subd. (a).) Proposition 36 gives offenders several chances at probation before permitting a court to impose jail time. (In re Taylor (2003) 105 Cal.App.4th 1394, 1397.)
The first time an offender violates a drug-related condition of probation, she is entitled to reinstatement on probation unless she poses a danger to others. (§ 1210.1, subd. (e)(3)(D).) The second time she violates a drug-related condition of probation, she is entitled to reinstatement on probation unless she poses a danger to others or is unamenable to treatment. (§ 1210.1, subd. (e)(3)(E).) Upon a third violation of probation, the court regains discretion to impose jail or prison time. (§ 1210.1, subd. (e)(3)(F).) The State is required to “move” for revocation of probation as a prerequisite to a finding of a violation of a drug-related condition of probation which may trigger revocation of probation. (People v. Tanner (2005) 129 Cal.App.4th 223, 236.)
These provisions do not apply where the defendant violates a nondrug-related condition of probation (§ 1210.1, subd. (e)(2)), or where the defendant has refused drug treatment as a condition of probation. (§ 1210.1, subd. (b)(4).) When a defendant makes no effort whatsoever to comply with his or her drug treatment probation, the defendant may be deemed to have refused treatment. (People v. Guzman (2003) 109 Cal.App.4th 341, 349.) Failure to appear in court, failure to report to the probation officer (except when reporting for a drug test), and failure to enroll in the court-ordered drug treatment program have been found to support a finding of ineligibility for reinstatement of Proposition 36 probation on the ground the defendant refused treatment. (People v. Johnson (2003) 114 Cal.App.4th 284, 303-304.)
Defendant devotes considerable discussion to the fact that only one motion or petition was made to revoke her probation for a drug-related violation, in making the argument that her Proposition 36 probation was prematurely revoked and terminated. However, the trial court did not revoke her Proposition 36 probation for a drug-related violation of probation. Instead, the Proposition 36 probation was revoked because the trial court found defendant had refused treatment.
The defendant’s failure to appear in court, failure to report to the probation officer, failure to submit to a drug test, and failure to report to group meetings, coupled with her two dirty drug tests, justified the court’s conclusion she refused treatment. There was no error in revoking and terminating the Proposition 36 probation.
We also note this claim was not raised in a timely manner. Defendant’s Proposition 36 probation was terminated in October 2006. Her acquiescence to the drug court terms of probation and by not appealing from the order revoking the Proposition 36 probation may be considered a waiver. (See People v. Dagostino (2004) 117 Cal.App.4th 974, 996-997 [defendant was foreclosed from challenging improper imposition of jail time as a condition of reinstatement of Proposition 36 probation because defendant did not appeal until after the second violation of probation]; see also People v. Dixon (2003) 113 Cal.App.4th 146, 150.)
2. Defendant’s Failure to Object that Her Sentence Was Not Individualized Was Forfeited and Lacks Merit.
Defendant claims her due process right to an individualized sentence was violated because the court imposed the upper term in prison based on a local court policy. We disagree.
A trial court has broad discretion when it comes to sentencing. (People v. Montano (1992) 6 Cal.App.4th 118, 121.) On appeal, we presume the court exercised its discretion properly, absent evidence to the contrary. (Ibid.) A trial court’s sentencing decision is subject to review for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) The forfeiture doctrine applies to various issues concerning the manner in which sentence is imposed and the hearing conducted. (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott).) Specifically, the forfeiture doctrine applies to claims involving the trial court’s failure to properly make or articulate discretionary sentencing choices. (Ibid.) Claims deemed waived involve sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner. (Id. at p. 354.)
Defendant’s claim of error is that the court followed a local policy of imposing the upper term upon revocation of drug court probation. If the upper term had been imposed in conformity with a local policy, it was defendant’s duty to object. Cloaking the issue in terms of a violation of due process does not revive the forfeited issue; a constitutional right, like any other right, may be forfeited by the failure to make a timely assertion of the right before a tribunal having jurisdiction to determine it. (United States v. Olano (1993) 507 U.S. 725, 731 [113 S.Ct. 1770, 123 L.Ed.2d 508]; see also People v. Barnum (2003) 29 Cal.4th 1210, 1224.) This is not a “facial challenge” to the pronouncement of sentence such as may be challenged for the first time on appeal. (See In re Sheena K. (2007) 40 Cal.4th 875, 885.)
However, the trial court did not state it was imposing the upper term pursuant to any local court policy, although the prosecutor argued that the upper term could be imposed based on both the local policy and defendant’s unsatisfactory performance on probation. Instead, the court selected the upper term because of defendant’s performance on probation and the fact she forged her community service hours. These are fact-based, individualized reasons for imposing the upper term. Thus, even if defendant had objected to the imposition of an aggravated sentence pursuant to a local court policy, we would find there was no error because the record does not support such an assertion.
3. Defendant’s Claim that Her Sentence was Based on Improper Aggravating Factors Was Forfeited by Failing to Object.
Defendant claims that the court improperly relied on the fact that she had forged her community service hours, an act occurring after the reinstatement of probation, to impose the aggravated term, in violation of rule 4.435(b)(1) of the California Rules of Court. Respondent argues that the point has been forfeited by defendant’s failure to object, but that remand is necessary in the event the issue was not forfeited. We agree the issue was forfeited, but even if it had not been, reversal is not required because the court cited two reasons for selecting the upper term, one of them relating to defendant’s performance on probation—a circumstance occurring between the original grant and the reinstatement of probation—which justifies the aggravated term.
At the time of defendant’s original sentence in 2006, the court was required to impose the middle term unless imposition of the upper or lower term was justified by circumstances in aggravation or mitigation. A single valid factor in aggravation is all that is needed to impose the upper term. (People v. Velasquez (2007) 152 Cal.App.4th 1503, 1516.) When the defendant is sentenced following a violation of probation, the length of the defendant’s sentence must be based on circumstances existing at the time probation was granted, and subsequent events may not be considered. (Cal. Rules of Court, rule 4.435(b)(1).) However, the court may consider circumstances occurring between the original grant and the reinstatement of probation. (People v. Harris (1990) 226 Cal.App.3d 141, 147.)
A claim that the upper term is improper because the court relied on improper aggravating circumstances is subject to the forfeiture rule of Scott, supra, 9 Cal.4th at page 353. (People v. Gonzalez (2003) 31 Cal.4th 745, 751; see also, People v. Freeman (1994) 8 Cal.4th 450, 522-523 [impropriety of aggravating factors in death penalty case waived by failure to object].) The claim here, that the court relied on an improper aggravating circumstance, is a fact-based circumstance subject to forfeiture unless a timely objection is made.
Defendant points to several factors in mitigation that would have justified a mitigated sentence, arguing that there were no factors in aggravation and more than one factor in mitigation. As we have pointed out, the trial court properly relied on the factor relating to defendant’s performance on probation between the original grant and the reinstatement of probation, so she is in error in saying there were no factors in aggravation.
As for the factors in mitigation, defense counsel orally argued the mitigating circumstances, so we are obliged to presume that the sentencing court considered those factors. (Evid. Code, § 664; Cal. Rules of Court, rule 4.409.) The sentencing rules only require the that the judge consider relevant criteria; the court is not required to state on the record why it did not find in favor of any claims in mitigation. (People v. Simon (1983) 144 Cal.App.3d 761, 766-767.) Nor is the trial court required to set forth its reasons for rejecting a mitigating factor. (People v. Holguin (1989) 213 Cal.App.3d 1308, 1317.)
To the extent defendant is urging us to reverse the sentence because the number of mitigating factors is numerically greater than the number of aggravating factors, her argument must fail. The selection of the base term is not a simple matter of adding the number of factors; it is the qualitative weight that the sentencing court accords to the factors which governs whether the upper or lower term is justified. (People v. Wright (1982) 30 Cal.3d 705, 719.)
Thus, even if we were to conclude that the argument was not forfeited, our conclusion would be the same. Error by the trial court in relying upon improper factors in aggravation requires resentencing only where the reviewing court determines that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (People v. Avalos (1984) 37 Cal.3d 216, 233.)
Here, the trial court cited two factors in aggravation: the defendant’s performance on probation, a proper factor, and the fact she forged her community service hours, arguably an improper factor. The single proper factor, occurring between the original grant and the reinstatement of probation, was sufficient to justify the selection of the aggravated term. There was no abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur: Richli Acting P. J., King J.