Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR056083
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant and appellant Massai Moser appeals from the final judgment revoking probation and imposing sentence following a revocation hearing on April 18, 2007. Defendant’s counsel has filed a Wende brief. (People v. Wende (1979) 25 Cal.3d 436.) We affirm.
FACTS AND PROCEDURAL BACKGROUND
On or about November 27, 2005, California Highway Patrol officers saw defendant driving a car into a casino parking lot and they noticed that the rear and front license plates did not match. After neither license plate number came back as belonging to the vehicle, the officers contacted defendant inside the casino. Defendant stated he had recently purchased the vehicle and did not notice that the plates did not match. After the officers were advised defendant had a suspended license and was currently serving a grant of conditional release for driving with a suspended license, they asked him why he had driven that day. Defendant replied that he just needed to get to the casino. Defendant’s vehicle was impounded due to an expired registration and an inventory search revealed a plastic container with 18.9 grams of marijuana and a glass methamphetamine pipe. In defendant’s pocket, officers found a small glass jar containing six grams of crystal methamphetamine. Defendant was arrested and booked into county jail.
A criminal complaint filed on November 30, 2005, charged defendant in case No. CR056083 as follows: count 1—possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); count 2—driving on suspended license (Veh. Code, § 14601.2, subd. (a)); count 3—possession of drug paraphernalia (Health & Saf. Code, § 11364); count 4—possession of marijuana while driving a motor vehicle (Veh. Code, § 23222, subd. (b)). Count 2—driving on suspended license—also alleged defendant had four prior convictions for the same offense.
At a hearing on December 7, 2005, defendant accepted a negotiated disposition under which he agreed to plead guilty to count 1—possession of methamphetamine, with all other counts to be dismissed. Defendant also admitted that by possessing methamphetamine he violated his current probation. The parties agreed sentencing on count 1 would be pursuant to Proposition 36. The trial court advised defendant on his constitutional rights attendant to a jury trial and defendant agreed to waive those rights. The court further advised defendant that the maximum penalty for the offense of conviction was the aggravated term of three years. Defendant specifically waived his right to a jury trial as to any circumstances in aggravation. The trial court also advised defendant that although he was going to be placed on felony probation he could be sentenced to state prison if he violated that probation. After defendant received and acknowledged the trial court’s advisements of his constitutional rights, defendant pleaded guilty to possession of methamphetamine and stipulated to the factual basis for the crime recited by the prosecutor. At the same time, defendant also admitted that by possessing methamphetamine he violated the conditions of his probation in three other convictions, viz., case No. CR040778 (driving with a suspended license with two priors), case No. CR044879 (violating a court order), and case No. CR050602 (driving with a suspended license with three priors).
The Substance Abuse and Crime Prevention Act of 2000 (Proposition 36 permits the diversion of nonviolent offenders charged with simple drug possession or use offenses to community-based substance abuse treatment programs.)
At a sentencing hearing on February 2, 2006, defendant was placed on supervised probation for a period of three years. On March 10, 2006, the probation officer filed a notice of probation violation alleging that defendant had again been cited for driving on a suspended license. At a hearing on March 9, 2007, the trial court advised defendant on his constitutional rights attendant to a probation violation hearing and to a jury trial. The trial court also advised defendant the maximum penalty for violating probation in this case was three years in prison. Defendant waived his rights and stated he understood the potential penalties. Defendant then admitted the violation of probation alleged in this case (case No. CR056083), admitted violating his probation in three other cases, and pleaded guilty to a new offense of driving with a suspended license with four priors, each of which he admitted.
The probation report prepared for sentencing purposes states: “Defendant complied with probation for just the first two months of his probation before he was cited for a new law violation. He then absconded altogether and his whereabouts were unknown for about eight months before he was arrested by law enforcement on outstanding warrants. He bailed out of jail and once again absconded for another four months. He was arrested by law enforcement on one felony warrant and five misdemeanor warrants. [¶] Defendant has sustained five felony convictions: one for drunk driving causing bodily injury, three for drunk driving with more than three priors, and one for possession of a controlled substance. He has also been convicted of fourteen misdemeanor convictions: one for burglary, six for driving when suspended/revoked: DUI, two for battery, one for resisting arrest, two for DUI, one for battery on a non-cohabitant, and one for violation of a protective order. [¶] . . . [Defendant] is not eligible for reinstatement on probation given his multiple felony convictions and prior prison terms.”
A combined sentencing hearing on defendant’s pending cases was held on April 18, 2007. After reviewing defendant’s extensive criminal history, the trial court stated: “It is the judgment and sentence of this [c]ourt that probation be revoked, and I would select as the appropriate term the term of three years in state prison for violation of Health and Safety Code 11337(a). I have stated the factual basis for that based on the prior convictions. That [defendant] was on probation at the time originally set for sentencing and independent of his performance of probation in this case, his prior performance on probation was not acceptable. He does have new offenses as well, and he is sentenced to the aggravated term of three years in state prison for violation of Health and Safety Code section 11377, sub[division (a)].” Defense counsel objected to imposition of the upper term of three years, to which the court responded: “I think it is appropriate he be sentenced pursuant to the new statute. The sentencing is today and also I would note that there is a Blakely/Apprendi waiver which was entered originally despite that, and also the aggravated term—I suppose it is not the aggravated term any more, but that term is selected based upon factors according to Apprendi which allow the imposition of the aggravated term even under Blakely, prior convictions.” (Italics added.) The abstract of judgment filed on May 7, 2007, reflects the sentence imposed by the trial court. Defendant filed a timely notice of appeal on May 4, 2007.
Blakey v. Washington (2004) 542 U.S. 296 (Blakely); Apprendi v. New Jersey 530 U.S. 466 (Apprendi).
DISCUSSION
As required under People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note appellant’s counsel has filed a Wende brief raising no arguable issue, counsel informed appellant of his right to file a supplemental brief, and appellant did not file such a brief. We have also independently reviewed the entire record for potential error and find none.
Trial courts have very broad discretion in determining whether a probationer has violated probation (People v. Rodriguez (1990) 51 Cal.3d 437, 443), and an appellate court should interfere with the exercise of such discretion only in “ ‘a very extreme case.’ ” (Ibid.) In addition, the facts in a probation revocation hearing are provable by a preponderance of the evidence standard. (Id. at pp. 441-442.) Here, after full advisement and waiver of his constitutional rights, defendant admitted he violated his probation by driving on a suspended license, and so the trial court did not abuse its discretion by revoking probation. (People v. Self (1991) 233 Cal.App.3d 414, 417 [probation revocation reviewed for abuse of discretion].)
Similarly, the trial court’s decision to impose the upper term sentence of three years in light of defendant’s extensive criminal history and prior poor performance on probation is neither “ ‘irrational or arbitrary’ ” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977), and therefore must be affirmed on appeal. (Id. at pp. 977-978 [absent showing that a trial court’s sentencing decision is irrational or arbitrary, the court is “ ‘presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ [Citation.]”].) Additionally, imposition of the upper term sentence raises no concerns under Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 860] [imposition of upper term based on judicial factfinding denied petitioner his right to a jury trial]) on the separate and independent grounds that: (1) defendant waived any Apprendi rights pursuant to his plea agreement; (2) the trial court based its imposition of the upper term on recidivist factors which do not implicate Apprendi (see People v. Black (2007) 41 Cal.4th 799, 812 [stating 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 and its progeny, any additional factfinding 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”]); and (3) defendant was sentenced subsequent to the effective date of Senate Bill 40. In sum, our independent review of the record reveals no error.
In response to Cunningham, supra, the California Legislature amended Penal Code section 1170, subdivision (b) of the determinate sentencing law to give the trial court discretion to impose the upper, middle, or lower term. (Stats.2007, ch. 3, § 2 (Sen. Bill No. 40), eff. Mar. 30, 2007.)
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P. J., Pollak, J.