Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FMB7824, Bert L. Swift, Judge.
Stephen M. Hinkle, 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, Assistant Attorney General, and Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST , Acting P. J.
Defendant and appellant Mark Aaron Vogt pled guilty to transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a), count 1), possession for sale of a controlled substance (Health & Saf. Code, § 11378, count 2), and receiving stolen property (Pen. Code, § 496, subd. (a) , count 3), pursuant to a plea agreement. In exchange, he was granted a three-year term of probation, contingent upon his compliance with standard terms, as well as his successful completion of the drug court treatment program. Defendant now appeals after his probation was revoked and he was sentenced to the upper term of four years eight months in state prison. He argues that the trial court improperly denied him a probation violation hearing in violation of his due process rights, and that the imposition of the upper term violated his right to a jury trial under Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856; 166 L.Ed.2d 856] (Cunningham). We find no error and affirm.
All further statutory references will be to the Penal Code, unless otherwise noted.
The facts underlying the initial guilty plea are not at issue on appeal; thus, there is no need to state them.
On May 10, 2007, sheriff’s deputies conducted a home visit where it was suspected that defendant was residing. Defendant was present with two other people, and the deputies found several ounces of marijuana in plain view and in the freezer, as well as packaging for sales. Defendant requested but was denied a probation violation hearing. The court revoked his probation and sentenced him to the upper term of four years on count 1 and eight months on count 3. The court imposed the upper term of three years on count 2 but stayed the sentence under section 654.
ANALYSIS
I. Defendant Waived His Right to a Probation Revocation Hearing
Defendant argues that he was deprived of his due process rights to formally contest the probation violation allegations. He asserts that he had no written notice and no hearing regarding the probation revocation. Defendant further claims that even if he signed a written waiver of his right to a probation revocation hearing, the record does not show that he knowingly or voluntarily waived his right to the hearing. We reject defendant’s claims.
“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 his right to a probation revocation hearing. Defendant opted to participate in the drug court treatment program in lieu of custody, so the trial court placed him on probation in order to allow him to participate. Defendant initialed and signed the form entitled “Drug Court Application and Agreement” (the Agreement).
We note that the People filed a request on February 21, 2008, and an amended request on February 25, 2008, asking this court to take judicial notice of defendant’s Agreement. By order filed March 10, 2008, we reserved ruling on the request for consideration on appeal. We have considered the request, as well as defendant’s objection that the Agreement was not a part of the court records. We note that the Agreement was signed by defendant, defendant’s attorney, and the presiding judge. It appears that the prosecutor inadvertently forgot to sign the Agreement and file it with the superior court. We now grant the People’s request and take judicial notice of the Agreement.
The Agreement provided that defendant was to comply with the court’s orders and the directions of the probation department and 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 his right to a probation violation (Vickers ) hearing. Defendant initialed the boxes next to each of the provisions, including the final provision stating that he could read and understand English, that he had sufficient time to read the agreement, and that he placed his initials in each box to signify that he understood and adopted as his own the statements contained in the Agreement. 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 39-year-old American man (as stated in the probation officer’s report) who was represented by able counsel — did not knowingly and voluntarily waive his right to a Vickers hearing when he signed the express waiver. Defendant’s counsel signed the Agreement as well. If a represented criminal defendant wants to establish that his attorney inadequately explained what they both signed, he 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.
People v. Vickers (1972) 8 Cal.3d 451.
Defendant additionally argues that the waiver he signed failed because it required him “to waive any future error relative to some future conduct that the drug court program might deem to be a violation of his probation.” In support of his argument, he 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 here signed 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 Agreement stated that defendant agreed to comply with the court’s orders, which included not using any controlled substance without a medical prescription and not associating with known illegal users or sellers of controlled substances. Defendant’s probation was revoked because he was found in a home with two other people, along with marijuana and packaging for sales. He cannot possibly claim that, as a participant in the drug court treatment program, he did not contemplate that possessing marijuana was in violation of the Agreement.
We conclude that the record does not support defendant’s claim that the waiver of his right to a Vickers hearing was not voluntary, knowing, and intelligent. Accordingly, on the basis of the written waiver signed by defendant and his attorney, defendant’s claim fails.
II. The Trial Court Properly Imposed the Upper Term
Defendant argues that the trial court erred in imposing the upper term on count 1, based on facts that were not found true by a jury. In his reply brief, however, he acknowledges that current case law does not support his argument, but he raises the issue to preserve it for federal court review. We conclude that the court properly sentenced defendant to the upper term.
At the outset, we note that defendant explicitly agreed that if he failed the drug court treatment program, he would be terminated from the Program and sentenced “in the range indicated in the Plea Bargain Agreement.” The plea agreement expressly stated the sentencing range as two, three, or four years for transportation of a controlled substance, and the court sentenced him to the upper term of four 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 [140 L.Ed.2d 350, 118 S.Ct. 1219]. 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.)
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 relied on the facts that defendant had two prior felony convictions and that he had served a prior prison term. These factors clearly fall within the Apprendi exception to the jury trial right. (Apprendi, supra, 530 U.S. at p. 490; People v. Thomas (2001) 91 Cal.App.4th 212, 223.) Therefore, the court did not violate defendant’s Sixth Amendment rights by imposing the upper term without these findings by a jury.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI, J., MILLER, J.