Opinion
E042049 E042055 E042056 E042058
4-25-2008
THE PEOPLE, Plaintiff and Respondent, v. VANESSA DAWN TENORIO, Defendant and Appellant.
Lizabeth Weis, 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, Peter Quon, Jr., Supervising Deputy Attorney General, Pat Zaharopoulos and Elizabeth Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Defendant Vanessa Dawn Tenorio contends the trial court violated her right to due process by revoking her probation and imposing a prison term without notice and an opportunity to be heard. Alternatively, defendant claims her counsel was ineffective under the Sixth Amendment to the United States Constitution because he did not object on a timely basis when the alleged errors occurred. She also contends the trial court erroneously imposed an upper term sentence without stating any reasons and violated her constitutional right to a jury trial by imposing an aggravated sentence based on facts that were not found true by a jury. Defendants claims involve four different cases that have been consolidated for purposes of this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
On October 22, 2002, a complaint was filed against defendant alleging she violated Health and Safety Code section 11377, subdivision (a), possession of methamphetamine, a felony (original possession case or case No. FMB005565). She pled guilty in this case on January 15, 2004, "in order to participate in the Deferred Entry of Judgment Program" under Penal Code section 1000. Judgment was deferred for 18 months provided defendant completed a drug treatment program pursuant to Penal Code section 1000.
Another complaint was filed against defendant on May 19, 2004, alleging a second violation of Health and Safety Code section 11377, subdivision (a), possession of methamphetamine, a felony, as well as a violation of Health and Safety Code section 11364, possession of a device used for smoking controlled substances, a misdemeanor (second possession case or case No. FMB006705). On June 10, 2004, defendant entered into a written plea agreement in the second possession case. As a result of the agreement, the felony possession charged in count 1 was reduced to a misdemeanor; count 2 was dismissed and defendant entered a no contest plea in order to be placed on probation pursuant to Penal Code section 1210.1 (also known as "Proposition 36 — the Substance Abuse and Crime Prevention Act of 2000"). Criminal proceedings in the original possession case were revoked and converted to a Proposition 36 probation matter pursuant to Penal Code section 1210.1 because of the second possession case.
Defendant was sentenced on July 1, 2004, to two years of probation in the misdemeanor possession case pursuant to Penal Code section 1210.1, subject to various conditions, including drug treatment. In the original possession case, defendant was sentenced on July 8, 2004, to probation pursuant to Penal Code section 1210.1 for a period of three years, subject to various terms and conditions, including enrollment and completion of a drug treatment program.
On August 12, 2004, the People filed petitions in each case seeking revocation of defendants probation for various reasons. These reasons included failure to (1) make court appearances, (2) cooperate with the probation officer, and (3) participate as directed in a drug treatment program.
A third criminal complaint was filed against defendant on January 10, 2005, alleging yet another violation of Health and Safety Code section 11377, subdivision (a), possession of methamphetamine, a felony (third possession case or case No. FMB007254). As a result, on January 13, 2005, the People filed a second petition to revoke probation in the two prior, but still pending, possession cases. These petitions alleged defendant admitted recent use of methamphetamine to her probation officer, failed to cooperate with drug treatment, and was terminated from her drug treatment program for nonattendance. On January 20, 2005, defendant entered a no contest plea in the third possession case and acknowledged that as a result of the offense she was also charged with violations of the probation conditions in the first two possession cases.
On February 24, 2005, the People filed a third petition to revoke probation in the original possession case and the second possession case. In this petition, the People alleged defendant failed to report and cooperate with her probation officer and did not contact an inpatient drug rehabilitation facility as directed.
The record indicates defendant admitted each of the violations alleged in the Peoples three petitions and probation was revoked. However, the court reinstated probation each time pursuant to Proposition 36. Probation was also revoked and reinstated when defendant missed appearances in drug court on several occasions even though the People did not file a petition to revoke.
On January 19, 2006, the courts minutes reported defendant was in custody "on another matter: FMB008045," and she was ordered to serve 60 days in jail. In this new matter, case No. FMB008045, defendant was charged with one count of child abandonment in violation of Penal Code section 271a, a felony. Shortly thereafter, on January 27, 2006, she entered into a written plea agreement and entered a no contest plea to the child abandonment charge. On March 30, 2006, defendant was sentenced to three years probation in case No. FMB008045, subject to a number of terms and conditions, including participation in the drug court rehabilitation program.
On December 11, 2006, the court held a sentencing hearing on all four of defendants pending cases. Relying on the probation reported dated "November 30th, 2006," the trial court revoked and terminated probation. In the principal case involving child abandonment (FMB008045), the court sentenced defendant to an aggravated term of three years. In the original and third possession cases, the court imposed consecutive terms of eight months, which is one-third of the middle term. The total prison commitment imposed was four years four months. The second misdemeanor possession case was dismissed, and defendant was "released as to this action only."
DISCUSSION
I. Due Process and Waiver
Defendant contends her right to due process was violated because the trial court revoked her probation without proper notice and an opportunity to be heard. The People argue defendant waived any due process issue relating to notice and an opportunity to be heard because she made no objection on these grounds in the trial court. The People also claim defendant waived her right to notice and a hearing because she signed a written waiver to participate in the drug court program.
Defendant also argues that the revocation of her probation without proper notice or a formal revocation hearing constitutes a "structural defect" which is "reversible per se," because it "defies harmless error analysis." Structural error has only been found in " `a very limited class of cases. " (People v. Gray (2005) 37 Cal.4th 168, 233, fn. 20.) Defendant cites no viable authority for this argument, and the alleged errors in this case do not resemble the type of structural errors that require reversal of a judgment in the absence of prejudice.
Trial courts are afforded broad discretion in deciding whether to revoke probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 445.) An appellate court will not disturb the trial courts decision absent an abuse of discretion. (People v. Self (1991) 233 Cal.App.3d 414, 417.) As defendant contends, probationers are entitled to due process protections prior to revocation and termination of probation, including notice and an opportunity to be heard. (People v. Vickers (1972) 8 Cal.3d 451, 458-460 (Vickers).)
A probation revocation proceeding violates due process if it is fundamentally unfair. (People v. Eckley (2004) 123 Cal.App.4th 1072, 1080.) "[S]ome flexibility in the manner in which due process guarantees are met is acceptable." (People v. Felix (1986) 178 Cal.App.3d 1168, 1171.) In the context of a revocation of probation, due process does not require a complete "recitation of procedural rights" and a personal waiver of those rights. (People v. Dale (1973) 36 Cal.App.3d 191, 194-195 (Dale).) Rather, a defendant can waive the formal requirements of notice and a hearing and admit a probation violation through the conduct of his attorney and his own silence. (Ibid.) The appellant in Dale complained of due process violations when the trial court revoked probation without a hearing and without obtaining a personal waiver of his right to present evidence and confront witnesses. (Ibid.) The appellate court concluded there was an effective waiver of those rights based on "conduct of counsel in submitting an alleged violation of probation upon the probation report" and defendants acquiescence by his silence. (Ibid.)
Similarly, in People v. Baker (1974) 38 Cal.App.3d 625, the appellant argued his right to due process was violated because he was not given prior written notice of the probation violations charged against him. (Id. at p. 629.) However, during the sentencing hearing, defense counsel requested and was given a brief recess to read the contents of a supplemental probation report to appellant to be certain he understood the purpose of the hearing. (Id. at p. 628.) The supplemental probation report charged the appellant with violating his probation by escaping probationary custody. (Ibid.) The hearing resumed immediately following the brief recess, and appellant was sent to prison despite his counsels request for reinstatement of probation and a presentation of mitigating circumstances related to the probation violation. (Id. at pp. 628-629.) The appellate court rejected defendants due process argument because prior notice could be implied from the record and because appellants attorney did not object to inadequate notice of the charges during the sentencing hearing. (Id. at p. 629.) In this regard, the appellate court stated as follows: "Absent objection, we will not imply inadequate notice from a record which is silent as to exactly how [the appellant] was given notice of the charges." (Ibid.) Likewise, in People v. Martin (1992) 3 Cal.App.4th 482, 486, the appellate court concluded defendant waived his right to a formal probation revocation hearing "by filing a statement in mitigation which acknowledged that he would be sentenced" and by failing "to object at the sentencing hearing either to the sentencing procedure or to the grounds for revocation."
Here, notice and an opportunity to be heard can be inferred from the record. A probation report dated November 27, 2006, but stamped received November 21, 2006, states defendant was terminated from drug treatment on November 15, 2006, for repeatedly violating terms 3, 6, 9, 15, 16, and 24 of her probation conditions "throughout the course" of her drug rehabilitation program. The report concluded defendant was "no longer amenable for the Drug Court Program" and recommended revocation and a prison sentence. Although the record does not include a proof of service for this document, probation reports are usually served on defense counsel and the court. (See Pen. Code, § 1203, subd. (b)(2)(E).)
In pertinent part, the referenced probation conditions state defendant shall "03) Cooperate with the probation officer in a plan of rehabilitation and follow all reasonable directives of the probation officer"; "06) Keep the probation officer informed of place of residence, cohabitants and pets, and give written notice to the probation officer twenty-four (24) hours prior to any changes . . . ."; 09) Neither use nor possess any controlled substance without medical prescription . . . ."; 15) Not associate with known convicted felons or anyone actively engaged in criminal activity . . . ."; 16) Not associate with known illegal users or sellers of controlled substances . . . ."; and "24) Participate in the Drug Court Rehabilitation Program . . . ."
On November 27, 2006, the court held a "drug court review" hearing in all four of the pending cases. Based on the trial courts minutes and the absence of a transcript dated November 27, 2006, we assume this "drug court review" hearing was not recorded or transcribed. However, the content of the probation report certainly suggests the reason for the hearing on November 27, 2006, was the alleged probation violations, as well as the recommendation for termination of probation and a prison sentence. In addition, the minutes for the hearing held November 27, 2006, state that another sentencing hearing was set for December 4, 2006, suggesting defendant was given additional time to prepare a defense.
Next, a second supplemental probation report dated December 4, 2006, but stamped received November 30, 2006, once again stated defendant had been terminated from the drug court treatment program for having violated terms of her probation "throughout the course" of her drug rehabilitation program. This report also listed defendants prior criminal history and probation violations and again concluded defendant was no longer amenable to drug treatment and recommended termination of probation and a prison sentence of four years four months. The recommended sentence included an upper term of three years for the child abandonment offense.
Although the record did not initially indicate that a sentencing hearing actually occurred on December 4, 2006, we were able to supplement the record with a transcript. The transcript from December 4, 2006, shows the trial court terminated probation and began to impose a prison sentence but then abruptly continued the hearing to December 11, 2006, when defense counsel objected to the trial court imposing consecutive sentences without stating appropriate reasons on the record. Counsel made no objection based on inadequate notice. Nor did counsel object to revocation without a formal hearing or challenge the factual basis for the alleged violations. Defendant also made no statement or objection at the hearing on December 4, 2006.
At the outset of the next hearing on December 11, 2006, the court stated it had "read and considered the probation report, which was [dated] November 30th, 2006, and the report and recommendations, and the basis for the report and recommendations." The court then asked defense counsel whether he wished to be heard. Defense counsel responded by urging the court to allow defendant a brief release to address issues relating to the guardianship of her daughter. Defense counsel also stated "I dont believe the sentence should be any greater than midterm, and sentence should be concurrent." In response, the prosecutor acknowledged that "the Courts already indicated that its going to [im]pose the aggravated term" and argued "consecutive sentencing" was appropriate under the circumstances. Once again, defense counsel did not object based on lack of notice, did not insist on a formal revocation proceeding, and did not state any disagreement with the information contained in the probation report or the grounds for revocation and termination of probation. The court then made a finding that factors in aggravation outweighed those in mitigation, terminated probation, and pronounced sentence in accordance with the recommendation in the probation report.
Based on the record, we can infer counsel had actual notice of the alleged probation violations at or before the hearings on November 27, 2006, and December 4, 2006. We can also infer counsel elected not to object or to otherwise challenge the factual basis for the alleged violations of defendants probation but instead to submit to the violations as alleged in the probation officers reports without the need for a formal revocation hearing. We therefore agree with the People that defendant waived any due process challenge to the revocation and termination of her probation, because she made no objection on these grounds in the trial court despite ample opportunity to do so.
Although we can infer a waiver in this case based on the record, we agree with defendant that we should not have to do so, and the record should more clearly reflect her intentions at the time of revocation and sentencing. The comments made by the appellate court in Baker under similar circumstances are appropriate here as well: "While we hold the record before us adequately demonstrates [the appellant] was accorded due process of law under . . . Vickers, we do not imply the record is a paradigm to be emulated. It should not be necessary for this court to glean compliance with due process requirements by implication and waiver. The court and counsel should assure the record demonstrates when, how and in what form the probationer was given notice of the charges against him and that the hearing was to determine whether probation should be, or stand, revoked. The court should, of course, make a clear statement . . . or a written record of the evidence relied upon and the reasons for revoking probation." (Baker, supra, 38 Cal.App.3d at p. 630.)
Because we can infer notice and an opportunity to be heard from the record, we decline to address the Peoples alternative argument that defendant waived her right to challenge the revocation of her probation on due process grounds because she signed a written waiver of those rights in order to participate in the drug court program. On July 2, 2007, the People submitted an application to augment the record to include a document entitled "Drug Court Application and Agreement." It appears defendant and her attorney signed the document on March 18, 2005. At paragraph (m), it also appears defendant initialed a box indicating agreement to waive "the requirement for Probation to file a formal Petition to Revoke probation, and a right to a Probation Violation Hearing ([Vickers, supra, 8 Cal.3d 451] Hearing) on any violations that may occur while I am on Drug Court Probation." In an order filed July 17, 2007, we construed the application as a request for judicial notice. We may take judicial notice of records of any court of this state. (Evid. Code, § 452, subd. (d).) Ordinarily, we do not take judicial notice of matters not previously presented to the trial court, because our review is based on "the trial courts ruling at the time it was made." (People v. Welch (1999) 20 Cal.4th 701, 739.)
The People argue this document is dispositive, because it constitutes affirmative proof that defendant waived her right to written notice of any probation violations and her right to a formal probation revocation proceeding in order to participate in the drug court program. On July 10, 2007, defendant opposed the Peoples request to augment the record with a copy of the waiver, arguing the request should be denied because the document was not properly authenticated. In her opposition to the request, defendant did not contest the validity of the written waiver. However, in her reply and during oral argument, defendant argued the written waiver is invalid. During oral argument, defendant also argued such waivers should be found invalid because they are resulting in silent, unreviewable records, and because they purport to waive the right to challenge an error that is unknown at the time the waiver is made. (See, e.g., People v. Mumm (2002) 98 Cal.App.4th 812, 815 [stating "[a] broad or general waiver of appeal rights ordinarily includes error occurring before but not after the waiver because the defendant could not knowingly and intelligently waive the right to appeal any unforeseen or unknown future error"].) Both parties took the position during oral argument that the validity of the written waiver is a key issue to be resolved in this appeal. We disagree.
Although the People represented during oral argument that defendant would have been denied a formal revocation hearing based on the written waiver if she had requested one, there is nothing in the record to show defendant was actually denied a hearing specifically because she signed the waiver. There is also nothing to show the document was actually filed in the courts record and available to the court at the time of revocation and sentencing. In fact, defendants appellate counsel represented she did not find a copy of the document in the record when she reviewed the case to prepare the appeal. Nor is there anything to indicate defense counsel requested a formal revocation hearing despite the existence of the written waiver, or objected to or contested the validity of the waiver in the trial court. On appeal, defendant did not contest the validity of the waiver until her reply brief. We therefore express no opinion on the validity of the written waiver. For the same reasons, we also deny the request for judicial notice.
II. Ineffective Assistance of Counsel
Defendant contends the trial court erred because it imposed an upper term on her child abandonment offense without stating adequate reasons on the record. According to defendant, the trial court did not adequately identify any aggravating factors to support the upper term. She concedes that her counsels failure to object to the trial courts statement of reasons waived her right to raise the issue on appeal. However, defendant argues alternatively she was denied effective assistance of counsel under the Sixth Amendment when her counsel failed to object resulting in the "withdrawal of a right crucial to the sentencing process." In support of her ineffective assistance of counsel claim, defendant cites the Supreme Courts decision in Strickland v. Washington (1984) 466 U.S. 668. We therefore address defendants argument in the context of her claim of ineffective assistance of counsel.
A cognizable claim of ineffective assistance of counsel requires a showing "counsel made errors so serious that counsel was not functioning as the `counsel guaranteed by the Sixth Amendment." (Strickland, supra, 466 U.S. at p. 687.) "[T]he performance inquiry must be whether counsels assistance was reasonable considering all the circumstances." (Id. at p. 688.) To prevail on an ineffective assistance of counsel claim, a defendant must also establish counsels performance prejudiced his defense. (Id. at p. 687.) To establish prejudice, a defendant must demonstrate "there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is probability sufficient to undermine confidence in the outcome." (Id. at p. 694.) Because a defendant must prove both elements of the Strickland test in order to prevail, courts may reject an ineffective assistance of counsel claim if it finds counsels performance was reasonable or the claimed error was not prejudicial. (Id. at p. 687.) "Because we accord great deference to trial counsels tactical decisions, counsels failure to object rarely provides a basis for finding incompetence of counsel." (People v. Lewis (2001) 25 Cal.4th 610, 661.)
As defendant contends, a trial court must state its reasons for discretionary sentencing choices on the record at the time of sentencing. (People v. Scott (1994) 9 Cal.4th 331, 349.) Defendant believes the trial court would have imposed a more favorable sentence if her counsel made appropriate objections on the record, contested at least one of the aggravating factors listed in the probation report, and presented mitigating circumstances to the trial court. She argues a reversal is required because the record discloses no tactical reason for failing to object. We disagree.
As noted above, the trial court stated at the outset of the sentencing hearing on December 11, 2006, that it "read and considered the probation report, which was [dated] November 30th, 2006, and the report and recommendations, and the basis for the report and recommendations." Defense counsel stated "I dont believe the sentence should be any greater than midterm, and sentence should be concurrent." In response, the prosecutor acknowledged that "the Courts already indicated that its going to impose the aggravated term" and argued "consecutive sentencing" was appropriate under the circumstances. The court then made a finding that factors in aggravation outweighed those in mitigation, terminated probation, and pronounced sentence in accordance with the recommendation in the probation report.
Based on our review of the record, we discern no basis for concluding the trial court would have reinstated probation or imposed a more lenient sentence if defense counsel had been more vigorous in making objections or in presenting mitigating circumstances to the court. At the time her probation was terminated on December 11, 2006, reinstatement was unlikely because defendant had already taken advantage of her three opportunities to complete drug rehabilitation and have her probation reinstated under Proposition 36. Pursuant to Penal Code section 1210.1, "a defendant convicted of a nonviolent drug possession offense is generally placed on probation, instead of being sentenced to state prison or county jail, on condition of completing a drug treatment program." (People v. Dagostino (2004) 117 Cal.App.4th 974, 987.) "A defendant who is on probation pursuant to Proposition 36 can only have that probation revoked in accordance with the terms of the statutory scheme." (Ibid.) The statutory scheme affords nonviolent drug possession offenders several chances at probation before incarceration can be imposed by limiting a trial courts discretion to deny and revoke probation based on new, nonviolent drug offenses. (Ibid.) However, probation under Proposition 36 is no longer the general rule when: (1) the People move for revocation three times for violations of drug-related conditions of probation; (2) three drug-related probation violations are either proven or admitted by the defendant as alleged in the Peoples petitions; and (3) the trial court revokes probation in response to each of the Peoples three petitions. (Pen. Code, § 1210.1, subd. (f)(1) & (f)(3)(F).) In order to reinstate probation after a probationer has taken advantage of three opportunities to have probation reinstated under Proposition 36, the trial court must make a finding "that the defendant is not a danger to the community and would benefit from further treatment. . . ." (Pen. Code, § 1210.1, subd. (f)(3)(C).)
"Drug related condition of probation" is defined as "a probationers specific drug treatment regimen, employment, vocational training, educational programs, psychological counseling, and family counseling." (Pen. Code, § 1210.1, subd. (g).)
Penal Code section 1210.1, subdivision (d)(2), also provides as follows: "If at any point during the course of drug treatment the treatment provider notifies the probation department and the court that the defendant is unamenable to the drug treatment provided and all other forms of drug treatment programs pursuant to subdivision (b) of Section 1210, the probation department may move to revoke probation. At the revocation hearing, if it is proved that the defendant is unamenable to all drug treatment programs pursuant to subdivision (b) of Section 1210, the court may revoke probation."
The prohibition against incarceration under Proposition 36 only arises when a defendant violates a drug-related probation condition, and different rules apply when a probation violation is nondrug related. (People v. Martinez (2005) 127 Cal.App.4th 1156, 1162.) Trial courts have discretion to revoke probation and incarcerate the defendant the first time a probationer violates a non-drug-related probation condition. (Pen. Code, § 1210.1, subd. (f)(2), formerly § 1210.1, subd. (e)(2); People v. Atwood (2003) 110 Cal.App.4th 805, 810.) "At that point, the defendant stands in the same shoes as any other probationer and he is subject to whatever sentencing statutes bear on his sentencing." (People v. Dixon (2003) 113 Cal.App.4th 146, 153.) If a violation of a non-drug-related probation condition is proved, the trial court can revoke probation without regard for the provisions of Proposition 36. (Pen. Code, § 1210.1, subd. (f)(2).) The People bear the burden of establishing by a preponderance of evidence that a probation violation is nondrug related. (People v. OConnell (2003) 107 Cal.App.4th 1062, 1066.)
As outlined above, after defendant pled guilty in the original possession case, she was charged and pled guilty to two additional drug possession offenses. These new criminal possession offenses qualified as drug-related probation violations under Proposition 36 in one or more pending cases. As a result of these drug-related probation violations, the People filed three separate petitions to revoke probation. In response to each petition, the record shows defendant elected to admit a drug-related violation of her probation without the formality of a hearing to challenge the allegations in the Peoples petitions. Each time, the trial court revoked but then reinstated probation. Consequently, the trial court had discretion to terminate probation and impose a prison sentence on December 11, 2006, without regard for the strong preference under Proposition 36 for reinstatement of probation.
Defendant was also no longer entitled to reinstatement of probation under Proposition 36 as to the non-drug-related offense of child abandonment. Child abandonment is a violation of the break-no-laws condition of defendants plea agreement and is not, on its face, a "drug-related" violation of probation. Defendant admitted this offense without contesting the factual basis for the charge and acknowledged the possibility of incarceration in a written plea agreement. Although the trial court exercised its discretion in the child abandonment case on March 30, 2006, to grant probation after defendant pled guilty, it was not required to do so. At this time, the court was no longer limited by Proposition 36 in the event of a new probation violation.
Like the prior possession matters, probation in the child abandonment case was conditioned on defendants participation in the drug court rehabilitation program. In November and December 2006, probation reports advised the trial court that defendant had been terminated from the drug rehabilitation program for repeated violations of several different probation conditions that caused the drug court team to conclude she was "no longer amenable" to drug treatment. To support this conclusion and its recommendation for incarceration, the report referred to defendants prior record and poor performance on probation.
Defendant has not presented anything indicating she had a viable basis for challenging her prior record or her long history of other probation violations and unsatisfactory performance on probation. Nor has she presented anything to even suggest she had a viable basis to contest allegations in the probation reports of November 27, 2006, and December 4, 2006, that she repeatedly violated several probation conditions "throughout the course" of her participation in the drug court rehabilitation program and was no longer amenable to treatment.
We are also unconvinced by defendants contention her counsel should have objected and presented mitigating circumstances to support a more favorable sentence. The only mitigating circumstances cited by defendant are her long-term drug addiction and the lack of any physical injury to the child as a result of the child abandonment offense. However, given defendants prior convictions and poor performance on probation, these circumstances are not enough standing alone to meet defendants burden of showing a reasonable probability of a more favorable sentence. "[T]he existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term." (People v. Black (2007) 41 Cal.4th 799, 813.) Counsel is not ineffective for failing to raise futile objections. (People v. Ramirez (2003) 109 Cal.App.4th 992, 1002.)
III. Aggravated Prison Term
Relying on the Supreme Courts recent decision in Cunningham v. California (2007) 549 U.S. 270 (Cunningham), defendant also argues the trial court violated her constitutional right to a jury trial by imposing an aggravated, upper term sentence of three years in the child abandonment case based on facts that were not found true by a jury. In Cunningham, the Supreme Court concluded Californias determinate sentencing law violates a criminal defendants right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the extent it allows trial courts to impose an aggravated upper prison term "based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant." (Cunningham, supra, 127 S.Ct. at p. 860, italics added.)
Defendants argument is unavailing. In imposing the aggravated term, the trial court indicated it relied on the probation report. According to the probation report, defendant was on probation when she committed the child abandonment offense, had admitted to drug possession in three prior cases, and had performed unsatisfactorily on probation. Therefore, the facts the trial court relied on in imposing an aggravated term fall within the prior conviction exception to the constitutional rule set forth by the Supreme Court in Cunningham. Under these circumstances, a defendant is not " `legally entitled "to the middle term sentence, and the upper term is therefore the " `statutory maximum " that a trial court may impose without violating constitutional requirements. (People v. Black, supra, 41 Cal.4th at pp. 811-820.) Nor is it constitutionally significant that in imposing the upper term the trial court may have also relied on other aggravating circumstances in imposing the upper term. (Ibid.) In short, the trial court in this case did not violate defendants constitutional right to a jury trial by imposing the upper term. Accordingly, defendant suffered no prejudice to the extent her counsel failed to make an objection on these grounds.
DISPOSITION
The judgment is affirmed.
We Concur:
KING, J.
MILLER, J.