Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. Nos. FSB28393, FSB040820, FSB041043, FSB042113. J. Michael Welch, Judge.
Sally P. Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia and Jeffrey J. Koch, Supervising Deputy Attorneys General, for Plaintiff and Respondent.
OPINION UPON REMAND
RICHLI, J.
Pursuant to a plea agreement in case No. FSB042113, defendant pleaded guilty to two counts of second degree robbery (Pen. Code, § 211) and admitted the truth of the respective principal armed with a firearm allegation (§ 12022, subd. (d)) as to each robbery count. On that same day and pursuant to a plea agreement in case No. FSB040820, defendant pleaded guilty to possession of cocaine base for sale (Health & Saf. Code, § 11351.5, subd. (a)) and resisting a peace officer (Pen. Code, § 148, subd. (a)(1)). Defendant also admitted that he had sustained a prior drug-related conviction (Health & Saf. Code, § 11370.2, subd. (a)) and that he had suffered a prior prison term (Pen. Code, § 667.5, subd. (b)). In addition, in case No. FSB028393, pursuant to a plea agreement, defendant pleaded guilty to possession of cocaine (Health & Saf. Code, § 11350, subd. (a)).
Defendant was thereafter sentenced in case No. FSB042113 to a total term of seven years four months in state prison; in case No. FSB040820, he was sentenced to a total term of seven years to be served concurrently with the sentence imposed in case No. FSB042113. On that same day, defendant was also sentenced in case No. FSB028393 to two years in state prison to be served concurrently with the sentence imposed in case No. FSB042113.
On appeal, defendant contends (1) the trial court abused its discretion in denying his motions to withdraw his guilty pleas in case Nos. FSB042113 and FSB040820; (2) the trial court erred when it imposed various restitution and revocation fines in case Nos. FSB042113, FSB040820, and FSB028393; and (3) he was deprived of his federal and state constitutional rights to a jury trial and due process under Cunningham v. California (2007) ___ U.S. ___, ___ [127 S .Ct. 856, 868] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi) when the trial court imposed an upper term and consecutive sentence in case No. FSB042113. We reject these contentions and affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the various preliminary hearing transcripts, as the parties stipulated that the facts in the preliminary hearing transcripts were true at the time defendant entered into his guilty pleas.
A. Case No. FSB028393
On November 2, 2000, defendant was found in a motel room in San Bernardino with cocaine in his possession.
On January 30, 2001, pursuant to a plea agreement, defendant pleaded guilty to possession of cocaine (Health & Saf. Code, § 11350, subd. (a)); in return, defendant was promised a suspension of the three-year sentence on the condition that he serve 270 days in county jail and complete a drug program. On March 20, 2001, the trial court dismissed the prior enhancement allegations and granted defendant supervised probation for a period of 36 months on various terms and conditions, including serving 270 days in county jail and completing an in-patient drug program.
Defendant’s probation was later revoked for his failure to appear at a probation review hearing, and a bench warrant was issued for his arrest.
On July 23, 2001, defendant admitted that he had violated the terms of his probation. The court found defendant to be in violation of his probation and reinstated probation on the original terms and conditions.
On June 10, 2003, a bench warrant was issued for defendant’s arrest, as he had violated several terms of his probation. On that same day, a petition to revoke defendant’s probation was filed.
B. Case No. FSB040820
On April 26, 2003, a San Bernardino police officer was on routine patrol about 9:45 a.m. when he observed defendant selling cocaine from his car in a motel parking lot. When the potential buyers saw the patrol vehicle, they walked away from defendant’s car. Defendant responded by leaving his car and running from the officer. The officer followed defendant in his patrol car, shouting for defendant to stop. Defendant ignored the officer’s orders but was eventually stopped by other officers and arrested.
On November 17, 2003, an information was filed alleging that defendant possessed cocaine base for sale (Health & Saf. Code, § 11351.5) and that defendant had resisted a peace officer (Pen. Code, § 148, subd. (a)(1)). The information also alleged that defendant had a prior drug-related conviction (Health & Saf. Code, § 11370.2, subd. (a)) and that he had suffered two prior prison terms (Pen. Code, § 667.5, subd. (b)).
C. Case No. FSB042113
On September 9, 2003, defendant and his companion Horatio Jones were parked in a stolen car in a San Bernardino hotel parking lot next to Pierre John Lewis. As Lewis waited in his car for his girlfriend Penny Leiterman, Jones got out of the passenger side of the stolen vehicle, approached Lewis, pointed his semiautomatic handgun at him, and demanded Lewis’s money. At that point, Leiterman approached, and Jones demanded money from her. Defendant then got out of the stolen car and asked Lewis what he had given Jones. In all, defendant and his confederate robbed Lewis and Leiterman of $10, a cellular telephone, and a wristwatch.
On December 29, 2003, an information was filed alleging that defendant had committed two counts of robbery (Pen. Code, § 211). The information also alleged firearm enhancement allegations (Pen. Code, §§ 12022, subd. (d)) attached to each count, as well as a prior prison term enhancement allegation (Pen. Code, § 667.5, subd. (b)).
D. Further Procedural History
While the new charges were pending, the probation revocation matter in case No. FSB028393 trailed case Nos. FSB 040820 and FSB042113.
On June 4, 2004, pursuant to a plea agreement in case No. FSB040820, defendant pleaded guilty to possession of cocaine base for sale (Health & Saf. Code, § 11351.5, subd. (a)) and resisting a peace officer (Pen. Code, § 148, subd. (a)(1)). Defendant also admitted the truth of the prior drug-related conviction allegation (Health & Saf. Code, § 11370.2, subd. (a)) and the prior prison term allegation (Pen. Code, § 667.5, subd. (b)). On that same day, pursuant to a plea agreement in case No. FSB042113, defendant pleaded guilty to two counts of second degree robbery (Pen. Code, § 211) and admitted the truth of the respective principal armed with a firearm allegation (Pen. Code, § 12022, subd. (d)) attached to each robbery count. In return, the trial court agreed to dismiss the remaining allegations and allow defendant to be released from jail and participate or “remain in Delancy Street [Residential Drug] Program pending further order of Court. . . . ”
At the time of the taking of the plea, the trial court advised defendant that his successful completion in the program would then be taken into consideration with respect to his potential sentence and custody, if any. The court also advised defendant that if he did not complete the program, the court was not bound by “anything” and could impose the full maximum sentence.
After separately taking defendant’s pleas in case Nos. FSB040820 and FSB042113, pursuant the plea, the trial court suspended the proceedings and released defendant to enroll and stay in the Delancy Street Residential Drug Program (Delancy). The court also released defendant in case No. FSB028393 and ordered him to enter Delancy. The court directed defendant to stay in touch with his attorney regarding his participation in the program and to also have personnel from Delancy stay in touch with his counsel regarding his progress. The court further stated that it would need a verification of defendant’s attendance in Delancy.
On June 21, 2004, the court was advised that Delancy had no record of defendant being enrolled into the program. A bench warrant was thereafter issued for defendant’s arrest.
On October 1, 2004, defendant admitted that he had violated the terms of his probation. The court thereafter proceeded to the sentencing phase in all three cases. Prior to sentencing, the court indicated that it would not give defendant another chance to enroll in Delancy and that it would sentence defendant to a total term of seven years four months on all of the three cases, with case No. FSB042113 being the primary case. Defense counsel thereafter requested that defendant be given another opportunity to enroll into Delancy due to some administrative problems related to the fact that defendant had not been sentenced. Specifically, defense counsel argued, “I think it was everybody’s intent to -- well, the court’s intent and [defendant’s] intent back in June that he was going to be given an opportunity to get into a program of that sort to actually work at it and try to complete it. [¶] The problem that arose, first off, as the court did make an order for his release, it took several days for that to become effective. [Defendant] did try, then, to get enrolled in Delancy Street. He had already been in contact with them. The court may recall seeing an acceptance letter, but Delancy [S]treet informed me -- him that he was not acceptable at that time because he was not yet sentenced and had further court dates even though this court had set that next date as a nonappearance date. So he never really got the opportunity to try to fulfill the agreement that he did not enter into with the court.”
The prosecutor responded, “. . . I think we’ve used up all our opportunities that put [defendant] into a program. [¶] The court would recall we had numerous delays and continuances while the Delancy arrangements were made. There should have been no unresolved issues at the time [defendant] was released. And even the fact there turns out to be problems once he was released, he obviously should return to the court or probation at the very least. Instead, [defendant] remained in the wind, as it were, until he was arrested on a new charge, what turned out to be counterfeit contraband, narcotics. [¶] For those reasons, it doesn’t appear he’s sincere in his interest in rehabilitation, but merely seeking to avoid punishment for crimes committed.”
The court then explained its reasons for not allowing defendant another opportunity to enter into Delancy, namely that even after bending over backwards to allow defendant this opportunity and the fact that the program had accepted defendant, defendant failed to inform the court or his counsel that he was having problems getting into the program due to procedural reasons. After a discussion between defendant and the court, defense counsel stated that defendant had not received the benefit of the plea bargain agreement and asked if that gave him a right to withdraw his plea. The court replied, “No,” and explained that defendant did receive the benefit of the plea bargain, but that he failed to comply with it. Defendant was thereafter sentenced as set forth, ante.
On that same day, after defendant was sentenced, defense counsel stated that defendant wished to withdraw his plea. The court noted that it had already sentenced defendant.
On November 1, 2004, defendant filed a notice of appeal from the sentence or other matters following defendant’s guilty pleas in case Nos. FSB042113, FSB040820, and FSB028393. On that same day, the trial court denied defendant’s request for a certificate of probable cause.
At a subsequent hearing before a different judge regarding conduct credits on November 3, 2004, defense counsel informed the court that defendant wished to withdraw his guilty pleas. Judge Fettel then appointed the conflict panel “for purposes of filing a motion to withdraw the plea or writ of corum novis [sic] or whatever might be required.” Later that afternoon, defendant appeared before the original judge and informed him that he wanted to withdraw his plea. The court stated that counsel should not have been appointed and vacated the appointment of an attorney on the plea issue. After the court noted that defendant had already been sentenced and that the matter was merely before the court for purposes of conduct credits, defense counsel asked if the court was denying the motion to withdraw the guilty plea. The court responded, “Yeah. I sentenced him. He made the motion the last time. I already sentenced him. I’ve sentenced him to prison.” The prosecutor thereafter interjected that the court did not have jurisdiction.
On November 4, 2004, defendant filed separate notices of appeal in case Nos. FSB042113 and FSB040820, challenging the sentence of other matters occurring after the plea.
We note that the record does not contain any motion or other document indicating that defendant sought to withdraw his earlier November 1, 2004, notice of appeal.
II
DISCUSSION
A. Denial of Guilty Pleas
Defendant contends the trial court abused its discretion in denying his motion to withdraw his guilty pleas. Specifically, he claims that his guilty pleas in case Nos. FSB042113 and FSB040820 were “induced” by a promise that he would be sent to Delancy and that when Delancy did not accept him due to administrative reasons, he should have been permitted to withdraw his guilty pleas. Defendant therefore requests that this court permit withdrawal of his guilty pleas in case Nos. FSB042113 and FSB040820 and allow him to proceed to trial in those cases. The People respond that this issue must be dismissed because the trial court denied defendant’s request for a certificate of probable cause. We are inclined to agree with the People.
Initially, we note that defendant waived his right to appeal this issue. A defendant who pleads guilty may waive the right to appeal. (People v. Panizzon (1996) 13 Cal.4th 68, 80; People v. Vargas (1993) 13 Cal.App.4th 1653, 1658.)
In People v. Sherrick (1993) 19 Cal.App.4th 657, 659, the appellate court concluded the defendant had not waived his right to challenge the trial court’s use of a patently erroneous standard in determining his ineligibility for probation where the plea agreement and waiver of appellate rights contemplated no specific sentence or probation eligibility. In People v. Vargas, supra, 13 Cal.App.4th at page 1662, this court held the defendant was not barred from challenging an alleged misapplication of conduct credits where the plea agreement and waiver of appellate rights made no mention of conduct credits. In Sherrick and Vargas, the sentencing issue was not within the contemplation and knowledge of the defendant at the time the waiver was made and, therefore, not within the general waiver of the right to appeal.
In contrast, defendant’s plea declarations disclose that he expressly waived his right to appeal “from any motion [he] . . . could bring and from the conviction and judgment . . . since [he was] getting the benefit of [the] plea bargain.” Defendant was aware of and expressly accepted the terms of his plea bargain.
Moreover, this issue is not cognizable on appeal for failure to obtain a certificate of probable cause.
A certificate of probable cause is a prerequisite to an appeal from a judgment on a plea of guilty or nolo contendere unless the appeal is based solely on grounds occurring after entry of the plea, which do not challenge its validity. (Cal. Rules of Court, rule 8.304(b)(1); see Pen. Code, § 1237.5.) Section 1237.5 authorizes an appeal only as to a particular category of issues and requires that additional procedural steps be taken. That statute provides: “No appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere, or a revocation of probation following an admission of violation, except where both of the following are met: [¶] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [¶] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court.”
As our Supreme Court explained, “the requirement of a certificate of probable cause is intended ‘“to promote judicial economy” [citation] “by screening out wholly frivolous guilty [and no contest] plea appeals before time and money are spent” on such matters as the preparation of the record on appeal [citation], the appointment of appellate counsel [citation], and, of course, consideration and decision of the appeal itself.’ [Citations.]” (In re Chavez (2003) 30 Cal.4th 643, 650-651.)
The certificate of probable cause must be obtained regardless of other procedural challenges being made. For example, a defendant who has filed a motion to withdraw a guilty plea that has been denied by the trial court still must secure a certificate of probable cause in order to challenge on appeal the validity of the guilty plea. (In re Chavez, supra, 30 Cal.4th at p. 651; In re Brown (1973) 9 Cal.3d 679, 682-683) When a defendant has failed to comply with the requirements of Penal Code section 1237.5, the Court of Appeal “generally may not proceed to the merits of the appeal, but must order dismissal. . . .” (People v. Mendez (1999) 19 Cal.4th 1084, 1096, 1099; see also People v. Panizzon, supra, 13 Cal.4th at p. 75.)
In the present matter, defendant acknowledges that he did not obtain a certificate of probable cause, because the trial court denied his request for one. However, he contends that the requirements of Penal Code section 1237.5 are not applicable to the facts of this case. He relies on People v. Delles (1968) 69 Cal.2d 906. In Delles, the court held that section 1237.5 did not apply where the defendant’s only claim was that the trial court erred in imposing a prison sentence contrary to the terms of the bargain by which his guilty plea was obtained. (Delles, at p. 909.) However, in this case, unlike Delles, defendant received exactly the sentence promised in the agreement. The court specifically informed defendant that if he did not comply with the requirements of the plea agreement, it was not bound by “anything” and could impose the full maximum sentence. The record shows that defendant failed to show up at Delancy and failed to inform his counsel or the court that there were administrative problems associated with his participation in Delancy until after he was arrested on a new charge. The trial court did not impose a sentence in violation of a valid plea agreement.
In addition, subsequent to the decision in Delles, Penal Code section 1237.5 was amended with tougher provisions regarding when a certificate of probable cause is required. (See § 1237.5, added by Stats. 1988, ch. 851, § 2, operative Jan. 11992, and amended by Stats. 2002, ch. 784, § 550; see also In re Chavez, supra, 30 Cal.4th pp. 650-651.) Indeed, the California Supreme Court has reiterated that a certificate of probable cause must be obtained to seek review in a plea entry case raising “certificate issues,” for example, “‘reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings.’” (Chavez, at p. 651; see also People v. Mendez, supra, 19 Cal.4th at p. 1099.) The California Supreme Court has also stated that section 1237.5 and former California Rules of Court, rule 31(d) (now rule 8.304(b)) “should be applied in a strict manner . . . .” (Mendez,at p. 1098, italics added.)
As the Supreme Court stated, “courts must look to the substance of the appeal: ‘the crucial issue is what the defendant is challenging, not the time or manner in which the challenge is made.’ [Citation.]” (People v. Panizzon, supra, 13 Cal.4th 68, 76.) Defendant is challenging the very sentence he negotiated as part of the plea agreement; thus, he attacks an integral part of the plea. The attack is, in substance, a challenge to the validity of the plea, which requires compliance with the probable cause certificate requirements of Penal Code section 1237.5 and California Rules of Court, rule 8.304(b). (People v. Mendez, supra, 19 Cal.4th at pp. 1094-1099; Panizzon, at pp. 76, 79, 89.) In view of the foregoing, this issue is not cognizable on appeal.
We also note that the issue is not properly before the court because defendant did not move to withdraw his guilty pleas before he was sentenced on October 1, 2004. He did not move to withdraw his pleas until after he was sentenced; therefore, the trial court had lost jurisdiction to hear the withdrawal motion.
B. Restitution and Revocation Fines
Defendant next contends that the trial court improperly imposed separate restitution and revocation fines in each of the three cases.
We note that this issue is cognizable on appeal as it involves matters occurring after the plea. (People v. Panizzon, supra, 13 Cal.4th at pp. 74-75; People v. Thomas (2004) 124 Cal.App.4th 529, 532.)
First, defendant challenges the imposition of two separate $200 restitution fines in case No. FSB028393. (Pen. Code, § 1202.4, subd. (b)). Pursuant to section 1202.4, subdivision (b), a trial court must impose “a separate and additional restitution fine” in “every case where a person is convicted of a crime.” “The triggering event for imposition of [a] restitution fine [under section 1202.4, subdivision (b)] is . . . conviction. [Citation.]” (People v. Chambers (1998) 65 Cal.App.4th 819, 822.) A restitution fine imposed as a condition of probation remains in effect following revocation of probation, and no statutory provision authorizes a trial court to impose “a restitution fine after revocation of probation.” (Id. at p. 823.) By its terms, section 1202.4, subdivision (b)(1) mandates the imposition of one restitution fine in each criminal case, but no more than one in each case. This mandate also applies to parole revocation fines. (Pen. Code, § 1202.45 [court must impose “an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4”; in addition, court cannot impose a parole revocation fine greater than the restitution fine set under section 1202.4].)
Defendant notes that the first $200 restitution fine was imposed when he entered his guilty plea in case No. FSB028393 and was granted probation on March 20, 2001. He then erroneously asserts that a second restitution fine was imposed on July 21, 2004, at the “revocation hearing,” during which probation was revoked and sentence was imposed. A restitution fine in case No. FSB028393 was not imposed on that date; the July 21 date was simple a court date to verify defendant’s participation in Delancy. However, a review of the record shows that at the October 1, 2004, combined sentencing hearing for all three cases, the trial court did impose a second $200 restitution fine in case No. FSB028393. As the parties point out, this second restitution fine was unauthorized and must be stricken. (People v. Chambers, supra, 65 Cal.App.4th at p. 823.) Since the abstract of judgment in case No. FSB028393 reflects the imposition of only one $200 restitution fine, the abstract in that case does not need to be amended.
Defendant next claims that two sets of parole revocation fines were also imposed in case No. FSB028393 and that one must therefore be stricken. (See Pen. Code, § 1204.45.) However, while the clerk’s minute order reflects that the revocation fine was imposed at the March 20, 2004, plea-entry hearing, the reporter’s transcript shows that no such fine was imposed on that date. It is well settled that when there is a discrepancy, the oral pronouncement prevails over the minute order. (People v. Farell (2002) 28 Cal.4th 381, 384, fn.2; People v. Price (2004) 120 Cal.App.4th 224, 242.) Hence, the trial court’s subsequent imposition of the revocation fine at the October 1 sentencing hearing was not in error, as it simply corrected its error in failing to impose the revocation fine at the March 20 plea entry hearing. The abstract of judgment in case No. FSB028393 reflects the imposition of only one $200 parole revocation fine and is therefore correct.
Defendant further claims that since he was sentenced in all three cases at the same sentencing hearing, the court could only impose a total of one restitution fine and one parole revocation fine for all three cases. Defendant therefore requests that this court strike two of the restitution fines and two of the parole revocation fines.
Initially, we note that defendant waived this issue by failing to object below. (See People v. Scott (1994) 9 Cal.4th 331, 356.) Contrary to defendant’s assertion, the imposition of separate restitution and revocation fines in the three separate cases, which were not formally consolidated into one case, was not unauthorized. Nothing in the statutory language of Penal Code section 1202.4 or section 1202.45 prohibits imposition of one restitution fine and one revocation fine in each criminal case addressed at a combined sentencing hearing. (See §§ 1202.4, subd. (b), 1202.45; People v. Enos (2005) 128 Cal.App.4th 1046, 1049.)
In support of his position, defendant relies upon People v. Ferris (2000) 82 Cal.App.4th 1272. In Ferris, the defendant was charged by two separate informations with crimes he committed on two different dates. (Id. at pp. 1275-1276) The People moved for joinder of the two cases or alternatively for consolidation. (Id. at p. 1276.) The court granted that motion, although the subsequently filed informations and jury verdicts for each case continued to bear separate case numbers. (Ibid.) The cases were tried to a single jury in a single trial and presented for sentencing at the same time. (Ibid.) At sentencing, the court imposed two $10,000 restitution fines. (Ibid.) Division One of this court struck the second $10,000 fine. (Id. at p. 1278.) The court focused on the language of Penal Code section 1202.4 that the restitution fines apply “‘[i]n every case where a person is convicted of a crime.’” (Ferris, at p. 1277.) The court concluded that this language was ambiguous where cases were separately filed, but joined together for trial and sentencing. (Ibid.) Given this ambiguity, the court concluded that the construction favoring the defendant must apply, and only a single restitution fine could be imposed in a single case. (Ibid.)
Subsequent to Ferris, the Court of Appeal for the Fifth Appellate District decided People v. Enos, supra, 128 Cal.App.4th 1046. In that case, the defendant pleaded guilty to charges from three separate cases. (Id. at p. 1048.) The trial court imposed three separate restitution fines under Penal Code section 1202.4 in the total amount of $1,000 -- $600 in one case and $200 in the other two cases. (Enos, at p. 1048.) The Enos court distinguished Ferris on two grounds. The court first observed that there had never been a motion to join or consolidate the three Enos cases and that, although there was a “combined” sentencing hearing, the cases were not tried together, as they were in Ferris. Rather, the trial court and parties treated the three cases as separate throughout the proceedings, separate notices of appeal were filed, and separate appellate records were prepared before the three appeals were consolidated by the appellate court. (Enos, at p. 1049.) Second, the court concluded the imposition of multiple restitution fines spread over several cases that cumulatively did not exceed the $10,000 statutory maximum could never constitute prejudicial error. (Id. at p. 1049.) The court pointed out, “[W]e think the Ferris court’s primary concern was not with the trial court’s imposition of more than one section 1202.4, subdivision (b) restitution fine and more than one suspended section 1202.45 parole revocation fine but rather with the resulting total of the fines that exceeded the $10,000 statutory limit. [I]n our view Ferris stands for the proposition that a trial court cannot impose multiple section 1202.4, subdivision (b) restitution fines and multiple section 1202.45 parole revocation fines in nonconsolidated cases where the total fines exceed the statutory maximum; the opinion does not address the question whether separate fines are proper where the total does not exceed the statutory maximum.” (Ibid.) The court concluded, “There is nothing in section 1202.4, subdivision (b) or section 1202.45 that prohibits multiple section 1202.4, subdivision (b) restitution fines and multiple section 1202.45 parole revocation fines in consolidated cases disposed of at a single sentencing hearing. To read these statutes as precluding separate fines that do not exceed the statutory maximum would result in a rule of law with no practical effect, because a defendant could never show prejudice. A trial court sentencing a defendant in consolidated cases would simply calculate the amount of the restitution fines as a whole instead of breaking them down separately for each case.” (Ibid.)
We concur in the reasoning of the court in Enos. Defendant’s three cases were dealt with as separate cases, and these three cases were never consolidated with one another. A separate plea was taken in case No. FSB028393; separate readiness hearings in separate departments were set for case Nos. FSB042113 and FSB040820; and separate trials were anticipated for the robbery case (case No. FSB042113) and the drug sale case (case No. FSB040820). In addition, separate pleas were taken in case Nos. FSB042113 and FSB040820 at the same hearing at the request of defense counsel for “attorney economy”; separate plea forms were completed and signed in each of the three cases; and separate sentences were imposed in each of the three cases at the combined sentencing hearing. Moreover, the abstracts and minute orders continued to reflect the separate case numbers for each case. Further, the total restitution fines and parole revocation fines of $600 imposed in this case does not exceed the $10,000 limit imposed by the statute. Under Enos, there was no error here.
The People assert that case Nos. FSB042113 and FSB040820 were consolidated for purposes of judicial economy should the case go to trial. However, a review of the record shows that case Nos. FSB041043 and FSB042113 were consolidated; this appeal does not involve case No. FSB041043. Rather, this appeal deals with case Nos. FSB042113, FSB040820, and FSB028393.
We conclude that separate $200 restitution fines and separate $200 parole revocation fines were properly imposed in the three cases.
C. Violation of Blakely and Apprendi
1. Upper term sentence
The trial court here selected the upper term of five years on one count of second degree robbery (Pen. Code, § 211) and a consecutive sentence on the second robbery count in case No. FSB042113, essentially based on “what ha[d] been mentioned in the probation officer’s report” and what the court had discussed with defense counsel and the prosecutor.
The court later noted that since this was a plea agreement, it was not going to make any findings under California Rules of Court, rule 4.421 (circumstances in mitigation) or rule 4.423 (circumstances in mitigation).
The probation officer cited the following factors in aggravation: (1) defendant’s prior convictions as an adult were numerous; (2) defendant had served a prior prison term; (3) defendant was on a grant of parole when the crime was committed; and (4) defendant’s prior performance on probation and parole was unsatisfactory. The probation officer found no circumstances in mitigation.
Defendant contends the court improperly imposed the upper term sentence as well as a consecutive sentence because the court based its decision on factors not found true by a jury, as required by Cunningham, supra, 127 S .Ct. 856, Apprendi, supra, 530 U.S. 466, and Blakely, supra, 542 U.S. 296. He thus claims the court violated his constitutional rights to a jury trial and due process and that the error is reversible per se.
Assuming, without deciding, that this issue is properly before this court and defendant has not forfeited his claim, we reject defendant’s Cunningham contentions.
In Cunningham, supra, 127 S.Ct. 856, the high court overruled in part the California Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), which had held, among other things, that the provisions of California’s determinate sentencing law authorizing the trial court to find the facts permitting an upper term sentence did not violate a defendant’s right to a jury trial. (Cunningham, at p. 860.) The United States Supreme Court concluded that because our determinate sentencing law “authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.” (Id. at p. 871, fn. omitted.)
However, Cunningham reaffirmed the exception enunciated in Almendarez-Torres, supra,523 U.S. 224 and affirmed in Apprendi: “[T]he 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. [Citations.]” (Cunningham, at p. 860, italics added; see also Apprendi, supra, 530 U.S. at pp. 488 & 490.)
In Cunningham, the defendant had no prior criminal history; the sentencing judge imposed the upper term in reliance on such factors as the particular vulnerability of the victim and the violence of the crime. (Cunningham, supra, 127 S.Ct. at pp. 860-861.)
While this appeal was pending, the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II). There, the court held that “if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Id. at p. 813, fn. omitted.) Accordingly, if the trial court has found at least one aggravating factor that falls within the Almendarez-Torres exception, the federal Constitution does not preclude it from imposing an upper term sentence based on that plus other aggravating factors, including factors that do not fall within the Almendarez-Torres exception. (Black II, at pp. 819-820.) The court here impliedly relied upon four factors that fall squarely within such an exception: that defendant’s prior convictions were numerous and increasingly serious; that he had served a prior prison term; that he was on a grant of parole when the crime was committed; and that his prior performance on probation and parole was unsatisfactory. (See ibid.) It follows that the trial court did not err by imposing the upper term.
Defendant’s purported claim that the trial court erred in failing to state any reasons in support of the upper term is waived. (People v. Scott (1994) 9 Cal.4th 331, 349-350, 356.) We note that although section 1170, subdivision (c) requires the trial court to “state the reasons for its sentence choice on the record,” this merely creates a record to facilitate appellate review of the sentencing choice for an abuse of discretion. (People v. Stewart (2001) 89 Cal.App.4th 1209, 1215.) In any event, there is more than sufficient evidence in the record to support the recidivist aggravating factors.
We also reject defendant’s generic claims that neither the information nor plea form advised him of the aggravating factors supporting either upper-term or consecutive-term choices. Since the court did not rely on such factors, this claim is irrelevant.
The United States Constitution does not mandate a jury trial on prior convictions, and any right to a jury trial would be purely statutory. (Apprendi, supra, 530 U.S. at pp. 487-490; People v. Epps (2001) 25 Cal.4th 19, 23; see § 1025.) By statute in California, a defendant is afforded a jury trial only as to the fact of those prior convictions alleged in the accusatory pleading as statutory sentence enhancements. (§ 1025; Epps, at pp. 29-30.) Prior convictions considered as aggravating factors for the purpose of imposing the upper term may be determined by the court upon facts shown in the probation report, as the trial court did here, and need be established only by a preponderance of the evidence. (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(b).) Thus, as defendant was not entitled to a jury trial, Blakely and Apprendi have no application here. (See Epps, at p. 23; § 1025; see also Cunningham, supra, 127 S.Ct. at pp. 860, 868; Apprendi, at pp. 488, 490.)
2. Imposition of consecutive term
Defendant also argues that imposition of a consecutive term on count 5 violates Cunningham. In Black II, supra, 41 Cal.4th 799, the California Supreme Court held for a second time that the determination whether two or more sentences should be served consecutively is a “‘sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense’ and does not ‘implicate[] the defendant’s right to a jury trial on facts that are the functional equivalent of elements of an offense.’” (Id. at p. 823, quoting Black I, supra, 35 Cal.4th at p. 1264.) In Black II, the Supreme Court stated bluntly: “Accordingly, we again conclude that defendant’s constitutional right to jury trial was not violated by the trial court’s imposition of consecutive sentences on all three counts.” (Black II, at p. 823.) Thus, the California Supreme Court has rejected defendant’s notion that the United States Supreme Court’s opinion in Cunningham cast doubt on the constitutionality of the imposition of consecutive sentences in the absence of jury findings. In light of Black II, defendant’s challenge is without merit.
III
DISPOSITION
The second $200 restitution fine in case No. FSB028393, imposed on October 1, 2004, is stricken. In all other respects, the judgment is affirmed.
We concur: RAMIREZ, P.J., McKINSTER, J.