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People v. Sukane

California Court of Appeals, Fourth District, Second Division
Jul 29, 2008
E042078, E042952 (Cal. Ct. App. Jul. 29, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County Nos. FMB6438 & FMB6551, Bert L. Swift, Judge.

Harry Zimmerman, 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, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Sabrina Y. Lane-Erwin, Deputy Attorney General, for Plaintiff and Respondent.


OPINION

HOLLENHORST, J.

Defendant Kari Lynn Sukane was placed on probation in two separate cases and ordered to complete the Drug Court Treatment Program, in lieu of going to prison. After numerous program violations, the trial court sentenced her at the same time on both cases. The court imposed the upper term in each case, for a total term of seven years in state prison. The two cases have been consolidated on appeal, and defendant now argues: 1) she was deprived of her right to a formal probation violation hearing, 2) the court abused its discretion when it imposed the upper term because it failed to consider or weigh her mitigating circumstances, and 3) the imposition of the upper term violated her right to a jury trial under Cunningham v. California (2007) 549 U.S. 270 (Cunningham). We affirm.

PROCEDURAL BACKGROUND

Case No. FMB6438

On March 2, 2004, pursuant to a plea agreement, defendant pled guilty to one count of possession of heroin (Health & Saf. Code, § 11351) and admitted that she had three prior prison terms. (Pen. Code, § 667.5, subd. (b).) As part of her plea agreement, she was referred to drug court. She was accepted in the Drug Court Treatment Program on March 15, 2004, and placed on probation, pursuant to certain conditions listed in the “Drug Court Application and Agreement” (the agreement).

All further statutory references will be to the Penal Code unless otherwise indicated.

Case No. FMB6551

Four days later, defendant was charged with four counts of forgery (§ 470, subd. (a); counts 1-4) and solicitation of a crime. (§ 653f, subd. (a); count 5.) Pursuant to another plea agreement, defendant pled guilty to all five counts and admitted to the same three prison priors as in case No. FMB6438. On July 1, 2004, the court again placed her on probation and ordered her to complete the Drug Court Treatment Program.

Sentencing in Both Cases

The probation department filed a supplemental report recommending that defendant’s probation be revoked in both cases and that she be sentenced to state prison for a total of seven years. The probation officer described the reasons for the recommendation as follows: “While in Drug Court, the defendant failed to adjust numerous times. In 2004, she tested positive five (5) times for opiates and non-prescribed medication. She was sanctioned for those violations twice, placed on contract twice, and committed to a Residential program for 90 days. In 2005, the defendant was sanctioned again for failing to provide a urine sample twice, testing positive for alcohol, and placed back to her previous phase of her program. In 2006, the defendant was again sanctioned and, on October 5, 2006, the defendant was involved in an automobile accident where she admitted to have been drinking prior to the accident. Although the officer determined that the defendant was not under the influence, it is believed that the SATC Drug Court treatment program can no longer aid her rehabilitation. [¶] The defendant has been to prison on more than one occasion, and knowingly accepted Drug Court as an alternative to incarceration.”

On December 4, 2006, the court held a sentencing hearing on both cases, and defense counsel argued that the allegations against defendant, of being involved in a traffic accident and admitting to drinking alcohol, did not justify sending her to state prison. The court proceeded to essentially read the allegations listed in the probation department’s supplemental report verbatim. It then formally revoked probation in both cases and sentenced defendant as follows: In case No. FMB6438, the court imposed the aggravated term of four years in state prison for the heroin possession count, plus one year for each of the three prison priors, to run consecutive. In case No. FMB6551, the court imposed the aggravated term of three years on each of the forgery counts, to run concurrent, plus a concurrent term of 165 days of local custody for the solicitation count. Thus, defendant’s total sentence was seven years.

Defendant filed notices of appeal for both cases, and this court granted her motion to consolidate them for appeal.

ANALYSIS

I. Defendant Waived Her Right to a Probation Revocation Hearing Twice

Defendant argues that she was deprived of her due process rights to formally contest the probation violation allegations. She claims that even though she signed a written waiver of her right to a probation revocation hearing, the record does not show that she knowingly or voluntarily waived her right to the hearing. We disagree.

“The voluntariness of a waiver is a question of law which we review de novo. [Citation.] To make this determination, we examine the particular facts and circumstances surrounding the case, including the defendant’s background, experience and conduct. [Citation.]” (People v. Vargas (1993) 13 Cal.App.4th 1653, 1660 (Vargas).)

The facts and circumstances surrounding the instant case constitute sufficient evidence that defendant voluntarily and intelligently waived her right to a probation revocation hearing. Defendant wanted to participate in the Drug Court Treatment Program in lieu of custody, so the trial court placed her on probation in both cases in order to allow her to participate. Defendant initialed and signed an agreement for each case. The agreements provided that she was to comply with the court’s orders and the directions of the probation department and the Drug Court Treatment Team. It also contained a provision stating that defendant waived the requirement for the probation department to file a formal petition to revoke probation, as well as her right to a probation violation (Vickers ) hearing. The agreements further advised defendant of the maximum punishment she could receive for the charges in each case. Defendant initialed the boxes next to each of the provisions, including the final provision stating that she could read and understand English, that she had sufficient time to read the agreements, and that she placed her initials in each box to signify that she understood and adopted as her own the statements contained in the agreements.

People v. Vickers (1972) 8 Cal.3d 451 (Vickers).

The written waiver of the right to a Vickers hearing demonstrates that defendant was sufficiently informed of this right to knowingly and intelligently waive it. (See Vargas, supra, 13 Cal.App.4th at p. 1661.) It would defy common sense to hold that defendant—a college-educated, 46-year-old American (as stated on the probation officer’s report), who was represented by able counsel—did not knowingly and voluntarily waive her right to a Vickers hearing when she signed the express waiver. Moreover, defendant and her attorney actually signed two such written waivers—one in each case. If a represented criminal defendant wants to establish that her attorney inadequately explained what they both signed, she will ordinarily need to bring in evidence outside the appellate record. A petition for writ of habeas corpus would be an appropriate method of raising such a contention. Defendant apparently has not filed such petition.

Defendant additionally argues that the waiver she signed failed because it required her “to waive any future error relative to some future conduct that the drug court program might deem to be a violation of her probation.” In support of her argument, she cites Vargas. However, Vargas is factually inapposite because that case involved a waiver of the right to appeal. Moreover, the issue there was the scope of the waiver, and the court concluded that the waiver was “very broad and general,” since it simply stated, “‘I waive my appeal rights.’” (Vargas, supra, 13 Cal.App.4th at p. 1662.) In contrast, the waiver that defendant signed here specifically stated, “I waive the requirement for Probation to file a formal Petition to Revoke probation, and a right to a Probation Violation Hearing ([Vickers] Hearing) on any violations that may occur while I am on Drug Court Probation.” Furthermore, the agreements stated that defendant agreed to comply with the court’s orders, which included not using any controlled substance without a medical prescription and not consuming any alcohol. Defendant’s probation was revoked because she tested positive five times for “opiates and non-prescribed medication,” and she tested “positive for alcohol.” She cannot possibly claim that, as a participant in the Drug Court Treatment Program, she did not know that using drugs or alcohol was in violation of her agreement.

We conclude that the record does not support defendant’s claim that the waiver of her right to a Vickers hearing was not knowing and intelligent. Accordingly, on the basis of both written waivers contained in the record, we conclude that defendant’s claim fails.

II. The Trial Court Properly Imposed the Upper Term

Defendant argues that the trial court abused its discretion in imposing the upper term because it did not consider the factors in mitigation. She thus contends that her sentence should be reversed. We conclude that there is no basis for reversal.

As asserted by defendant, the record shows that the court did not consider either the aggravating or mitigating factors in the probation reports filed in each case. At the sentencing hearing, the court made no indication that it read or considered the probation reports, but only that it had reviewed the first page of the probation officer’s supplemental report filed on December 4, 2006, or the sentencing memo dated November 13, 2006. Prior to sentencing defendant, the court essentially read the statement of allegations made by the probation officer. Though we agree the court erred by apparently failing to consider or weigh the mitigating factors, it is not reasonably probable that a more favorable sentence would have been imposed in the absence of error. (See People v. Davis (1995) 10 Cal.4th 463, 552.) The original probation reports in both cases clearly show that the circumstances in aggravation outweighed the circumstances in mitigation. The aggravating factors included: 1) defendant’s prior convictions as an adult were numerous and of increasing seriousness; 2) defendant had served prior prison terms; 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 mitigating factors listed were that: 1) defendant’s long-term addiction to heroin significantly reduced her culpability for the crime, and 2) defendant voluntarily acknowledged wrongdoing prior to the arrest. We note that defendant’s mitigating factors related to her early acknowledgement of guilt and her heroin addiction. However, the purpose of allowing defendant to participate in the drug court program, instead of being incarcerated, was for her to overcome her addiction. She failed to comply with the Drug Court Treatment Program rules and to take advantage of the opportunity given to her.

We conclude that the imposition of the upper term was ultimately proper. Thus, there is no basis for reversal.

III. Any Error in Sentencing Defendant to the Upper Term Was Harmless

The trial court revoked defendant’s probation and sentenced her to the upper terms in both cases based on her poor performance while on probation. Defendant argues that the trial court’s sentence violated her federal constitutional right, under Cunningham, to have a jury determine whether her performance on probation warranted the aggravated terms, based on facts found beyond a reasonable doubt. We conclude that the error, if any, was harmless.

At the outset, we note that defendant explicitly agreed that if she failed the Drug Court Treatment Program, she would be terminated from the program and sentenced “in the range indicated in the Plea Bargain Agreement.” The plea agreement in case No. FMB6438 expressly stated the sentencing range as two, three, or four years for heroin possession, and the court sentenced her to the upper term of four years accordingly. The plea agreement in case No. FMB6551 expressly stated the sentencing range as 16 months, two years, or three years, for forgery, and the court sentenced her to the upper term of three years accordingly.

In any case, defendants have a constitutional right to have the jury, not the trial judge, decide all facts increasing the penalty for a crime beyond the prescribed statutory maximum. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi); Blakely v. Washington (2004) 542 U.S. 296, 301 (Blakely).) Cunningham “held that California’s determinate sentencing law violates the Sixth Amendment to the United States Constitution because it ‘authorizes the judge, not the jury, to find the facts permitting an upper term sentence . . . .’ [Citation.] As the Supreme Court explained, ‘the 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.’ [Citation.] [¶] The prior conviction exception referred to in Cunningham derives from the Supreme Court’s opinions in Apprendi [], Blakely []and Almendarez-Torres v. United States (1998) 523 U.S. 224 [(Almendarez-Torres)]. Courts in California and in other jurisdictions have construed Apprendi, ‘as requiring a jury trial except as to matters relating to “recidivism.”’ [Citation.]” (People v. Yim (2007) 152 Cal.App.4th 366, 370 (Yim).)

The California Supreme Court recently 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, supra, at pp. 819-820.)

The trial court here determined that defendant’s performance on drug court probation was unsatisfactory, and it revoked probation and immediately sentenced defendant. It is unclear whether the court relied upon defendant’s poor performance on probation just to revoke probation or also to support imposition of the upper term. Furthermore, usually a defendant’s prior unsatisfactory performance on parole or probation is a factor that supports imposition of the upper term. (See Yim, supra, 152 Cal.App.4th at p. 371.) This type of determination is the type of finding relating to a defendant’s recidivism “that may be determined by examining the records of the prior convictions” and is “‘typically and appropriately undertaken by a court.’” (Black II, supra, 41 Cal.4th at pp. 819-820; accord, Yim, supra, at pp. 370-371.) Once the trial court has made this determination, a defendant is eligible for the upper term, which becomes the statutory maximum. (Black II, supra, at p. 816.)

Assuming arguendo that the court somehow erred in relying upon defendant’s poor performance on drug court probation to justify the upper term, we find any error harmless. In People v. Sandoval (2007) 41 Cal.4th 825, 838 (Sandoval), our Supreme Court held that violations of a defendant’s right to a jury trial on aggravating circumstances are subject to the harmless error analysis as set forth in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). Pursuant to Chapman and Sandoval, we may find an error harmless if we conclude the jury “applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury.” (Sandoval, supra, at p. 839.)

Based on our review of the record, we conclude the jury would have undoubtedly found one or more of the aggravating factors true beyond a reasonable doubt, thereby authorizing imposition of the upper terms in both cases. If the jury had been asked to determine whether defendant’s prior performance on probation or parole was unsatisfactory (Cal. Rules of Court, rule 4.421(b)(5)), the jury would have undoubtedly found the aggravating circumstance true beyond a reasonable doubt. Defendant’s original probation reports show that she had numerous prior probation and parole violations, related to her previous convictions. Moreover, the record shows that defendant was on a grant of parole or probation when the crimes were committed. We also note that another legally sufficient aggravating factor which qualified defendant for the upper term is the number of prior convictions and the increasing seriousness of her crimes. (Cal. Rules of Court, rule 4.421(b)(2).) Defendant’s criminal record shows that she had been convicted of driving under the influence in 1983 (Veh. Code, § 23153, subd. (a)); being under the influence of a controlled substance in 1990 (Health & Saf. Code, § 11550, a misdemeanor); theft in 1994 (§ 484, subd. (a), a misdemeanor); possession of a controlled substance (date unknown) (Health & Saf. Code, § 11350, subd. (a), a felony); theft in 1998 (§ 666, a felony), and embezzlement in 2002 (§ 503, a felony). These convictions are both numerous and of increasing seriousness.

In view of the record, we conclude that any constitutional violation in imposing the upper term in both cases was harmless beyond a reasonable doubt.

DISPOSITION

The judgment is affirmed.

We concur: RAMIREZ, P. J., KING, J.


Summaries of

People v. Sukane

California Court of Appeals, Fourth District, Second Division
Jul 29, 2008
E042078, E042952 (Cal. Ct. App. Jul. 29, 2008)
Case details for

People v. Sukane

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. KARI LYNN SUKANE, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Jul 29, 2008

Citations

E042078, E042952 (Cal. Ct. App. Jul. 29, 2008)