Opinion
NOT TO BE PUBLISHED
Super. Ct. No. NCR70488
CANTIL-SAKAUYE, Judge.
Defendant Mike Mehringer entered a negotiated plea of guilty to transportation of methamphetamine in violation of Health and Safety Code section 11379, subdivision (a) and admitted two prior drug possession convictions alleged under Health and Safety Code section 11370.2, subdivision (c). In accordance with the plea agreement, defendant was initially placed on Proposition 36 probation with the understanding that any violation of probation would result in the termination of probation and the imposition of a prison sentence. A few weeks later, defendant admitted violating his probation by testing positive for methamphetamine and cocaine and failing to appear at the probation department for scheduling of his required community service. Defendant was sentenced to serve the upper term of four years for his conviction of transportation of methamphetamine and three years for each admitted prior conviction allegation, for a total of 10 years in state prison. Defendant timely appealed and obtained a certificate of probable cause.
Defendant claims on appeal the trial court’s imposition of the upper term sentence violated his Sixth Amendment right to jury trial as explained in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We shall affirm the judgment.
FACTUAL BACKGROUND
We do not set forth the factual basis of defendant’s conviction because it is not relevant to his appeal.
DISCUSSION
In Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), the United States Supreme Court held 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.” (Id. at p. 490 [147 L.Ed.2d at p. 455].)
In Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely), the Supreme Court applied the rule of Apprendi to invalidate a state court sentence. The high court explained that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.]” (Blakely, supra, at p. 303 [159 L.Ed.2d at p. 413], italics omitted.)
In Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856], the Supreme Court applied Apprendi and Blakely to California’s determinate sentencing law and held that by “assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.” (Id. at p. ___ [166 L.Ed.2d at p. 864], italics omitted, overruling People v. Black (2005) 35 Cal.4th 1238 (Black I) on this point.)
Defendant in this case entered his guilty plea to transportation of methamphetamine on January 29, 2007, five days after the United States Supreme Court decision in Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856]. Prior to taking defendant’s plea, the trial court clarified a discussion it had with defendant and counsel to the effect that “if the Defendant violates probation, there is not an agreement that there will be a ten-year term, but there is an agreement that there may be a ten-year term.” The court then questioned defendant’s understanding of his waiver of rights and plea form. The waiver and plea form states the stipulation “that any one violation of this grant of probation will result in termination of probation and imposition of an appropriate prison sentence.” (Capitalization omitted.) The trial court specifically asked defendant if he understood he “could . . . be sentenced up to, by your agreement, ten years in State Prison.” Defendant said that was his understanding. The trial court stated defendant would initially receive probation under Proposition 36, but if defendant violated his probation, he would be “sentenced as if Proposition 36 just didn’t exist.” The trial court then advised defendant of his constitutional rights, including his right to a jury trial, and defendant waived all of his constitutional rights and entered his plea. Defendant was placed on Proposition 36 probation on February 26, 2007.
This record strongly suggests defendant waived his right to jury trial on any sentencing factors when he waived his right to jury trial in entering his plea, post-Cunningham, after expressly agreeing that he could be sentenced for up to 10 years in prison upon any violation of his initial grant of probation. However, even if we were to find there was no waiver, we conclude defendant subsequently forfeited his claim of Cunningham error by failing to object at sentencing.
Specifically, a petition for revocation of defendant’s probation was filed on March 14, 2007. Defendant admitted the charged violations on March 19, 2007. Defendant’s probation was revoked and the matter was referred to the probation department for a supplemental probation report. On April 16, 2007, defendant was before the trial court for sentencing. Defendant argued for a probation placement. The trial court, however, rejected reinstatement of probation and sentenced defendant to the upper term of four years for his transportation of methamphetamine conviction and imposed three years of state prison time for each of the admitted special allegations for a total prison sentence of 10 years. In choosing the upper term sentence, the trial court stated the factors in aggravation outweigh those in mitigation, noting defendant has numerous prior convictions and was on parole when he committed the offense. Defendant voiced no objection to the trial court’s finding of such aggravating factors and never asserted his constitutional right to jury trial pursuant to Cunningham.
Defendant’s original probation report reflects defendant has six prior felony convictions in addition to the two prior convictions alleged under Health and Safety Code section 11370.2, subdivision (c), and four prior misdemeanor convictions dating back to 1992.
In his opening brief, defendant notes the California Supreme Court recently determined in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) that a failure to object in the trial court did not result in a forfeiture of a Blakely/Cunningham claim on appeal. Both cases are inapposite to defendant’s situation.
In Black II, supra, 41 Cal.4th 799, the California Supreme Court held that defendants who were sentenced before the United States Supreme Court decision in Blakely did not forfeit their federal constitutional right to jury trial by failing to object to the sentencing procedure in the trial court. (Id. at pp. 810-812.) Defendants and their counsel reasonably could not have been expected to have anticipated the “sea change” in sentencing law made by the United States Supreme Court in Blakely. (Black II, supra, at p. 812.)
In Sandoval, supra, 41 Cal.4th 825, a companion case to Black II, the California Supreme Court concluded a Cunningham issue is not forfeited by a defendant’s failure to object at sentencing when the sentencing proceeding took place after the California Supreme Court’s decision in Black I because any objection would have been futile at that time. (Sandoval, supra, at p. 837, fn. 4.)
In contrast, defendant here was sentenced after both Blakely and Cunningham. An objection was reasonably required and would not have been futile. Issues not raised in the trial court, including constitutional claims under the Sixth Amendment, are subject to forfeiture. (People v. Hill (2005) 131 Cal.App.4th 1089, 1103, citing People v. Saunders (1993) 5 Cal.4th 580, 590 & fn. 6.)
Defendant urges us to nevertheless consider the merits of his claim in order to “avoid the inevitable necessity of the filing of a writ based on ineffective assistance of counsel[.]”
If we reached the merits of defendant’s claim, we would reject his claim of Cunningham error. As the California Supreme Court ruled in Black II, “imposition of [an] upper term does not infringe upon [a] defendant’s constitutional right to jury trial [under Apprendi-Blakely-Cunningham] so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) In imposing the upper term sentence, the trial court here relied on defendant’s prior convictions, which are “recidivism” facts, as to which the Sixth Amendment does not require jury findings. (Id. at pp. 818-820; see People v. Thomas (2001) 91 Cal.App.4th 212, 222-223.)
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., DAVIS, J.