P.v. Clarke

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Filed 12/18/06 P. v. Clarke CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Shasta)
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THE PEOPLE,
Plaintiff and Respondent,
v.
LEE KELLY CLARKE,
Defendant and Appellant.
C049648
(Super. Ct. No. 04F3594)
Defendant Lee Kelly Clarke was placed on probation after
pleading no contest to obstruction of an executive officer.
(Pen. Code, § 69.) When he later violated the terms and
conditions of his probation by resisting arrest and kicking out
the rear window of a patrol unit, his probation was revoked and
he was sentenced to the upper term of three years in state
prison.
On appeal, he contends (1) the court improperly relied on
conduct occurring after entry of the plea in imposing the
aggravated term, (2) the court’s March 30, 2005, minute order
requires correction to properly reflect the court’s ruling, and

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(3) imposition of the aggravated term violated his rights under
the Sixth and Fourteenth Amendments and Blakely.1
We shall direct the court to correct its minute order, and
shall otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND2
Defendant entered a plea of no contest to obstructing and
resisting an executive officer after he attempted to kick the
window out of a patrol unit while being transported to the
police station in conjunction with an investigation to determine
whether he had left the scene of a traffic accident. In
exchange for his plea, a remaining count was dismissed with a
Harvey waiver, and four additional cases pending against him
were also dismissed.
The presentence probation report suggested a middle term of
two years, but recommended formal probation with specified terms
and conditions. The court suspended imposition of sentence for
three years and placed defendant on formal probation on the
terms and conditions set forth in the probation report, as
modified by agreement of the parties.
1 Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403].
2 The underlying facts are not at issue and are therefore only
briefly summarized from the probation reports in light of the
defendant’s entry of a plea of no contest.

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Approximately five months later, defendant was involved in
another incident with law enforcement officers that resulted in
the filing of a petition for revocation of probation alleging
that defendant (1) broke out the window of a sheriff’s patrol
car, (2) resisted arrest, (3) hit a sheriff’s deputy,
(4) obstructed arrest, (5) made threatening phone calls to a
victim and (6) failed to appear for a probation appointment.
Defendant denied the allegations.
At the conclusion of the contested probation violation
hearing, the trial court found the first, second, and fourth
allegations in the petition to be true, and dismissed all
remaining allegations. The matter was referred to probation for
preparation of a supplemental presentence report.
At sentencing, the court stated that it “read and
considered the supplemental report filed by the probation
department on April 25th, and based on its contents, [was]
tentatively prepared to follow their recommendation.” The
supplemental report recommended that probation not be reinstated
and suggested an aggravated prison term of three years (as
opposed to the middle term of two years suggested in the initial
probation report), noting that, “due to the defendants [sic]
performance while on probation, the aggravated prison term
appears [to] be more appropriate and will be recommended.”
After hearing oral argument from counsel, the court denied

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reinstatement of probation and sentenced defendant to the
aggravated term, citing three factors in aggravation and finding
no factors in mitigation.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Defendant contends that the court’s imposition of the upper
term was improper because it was based, at least in part, on
“inappropriate considerations” contained in the supplemental
probation report. Specifically, defendant claims the court
improperly considered conduct occurring after entry of the
underlying plea.
The People argue that defendant forfeited his claim by
failing to raise it at the time of sentencing. (People v. Scott
(1994) 9 Cal.4th 331, 351 [lack of a timely and meaningful
objection to a criminal sentence results in forfeiture of the
claim].) Alternatively, the People argue that the trial court
had full sentencing discretion upon the revocation of probation
because imposition of sentence was suspended at the time
defendant first entered his plea. (People v. Howard (1997) 16
Cal.4th 1081, 1087.)
In response to the forfeiture argument, defendant maintains
that he preserved his claim because he “requested numerous
lesser punishments, including that he receive probation, or the

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mitigated term, or midterm,” and “argued that the probation
department was wrong in recommending the aggravated term.” We
find those arguments insufficient to preserve the specific claim
defendant now proffers on appeal -- that the court
inappropriately considered post-offense conduct in imposing the
upper term. “‘[D]efendant’s failure to make a timely and
specific objection’ on the ground asserted on appeal makes that
ground not cognizable.” (People v. Partida (2005) 37 Cal.4th
428, 434, citing People v. Green (1980) 27 Cal.3d 1, 22.)
Because he did not challenge the court’s findings on that issue
at the sentencing hearing, the claim of error is forfeited.
(See People v. Scott, supra, 9 Cal.4th 331, 352-353; People v.
de Soto (1997) 54 Cal.App.4th 1, 8-9.)
In any event, the contention fails on the merits. At the
time defendant entered his plea, the court suspended imposition
of sentence and placed him on formal probation. Once defendant
violated probation, the court had authority to consider all
prior conduct in order to determine whether or not to reinstate
probation. (People v. Harris (1990) 226 Cal.App.3d 141, 145-146
(Harris) [court may properly consider defendant’s conduct prior
to reinstatement of probation].) We can infer from the record
that the court did just that when it read and considered the
supplemental probation report. Noting that the defendant was

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“not able to live within the limits of a grant of probation,”
the court resolved not to reinstate probation.
Thereafter, in imposing the upper term of three years, the
court appropriately considered factors existing at the time
defendant entered his plea, finding in aggravation the fact that
“defendant’s prior convictions as an adult or sustained
petitions in juvenile proceedings are numerous and have been of
increasing seriousness,” that defendant was on probation or
parole when the crime was committed and that defendant’s prior
performance on probation or parole was unsatisfactory. We find
no error in the court’s imposition of the upper term.
II
Defendant next contends, and the People agree, that the
court’s March 30, 2005, minute order incorrectly reflects that
the court found true Counts 1, 2, and 3 of the petition for
probation revocation. In fact, the court sustained the
allegations in Counts 1, 2, and 4, dismissing all remaining
counts, including Count 3. We agree that the minute order is
not consistent with the court’s order articulated on the record,
and we therefore direct the trial court to issue an amended
minute order correctly setting forth its ruling.
III
Defendant contends the trial court’s imposition of the
upper term for Count 1 violated his right to a jury trial under

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Blakely and under the Sixth and Fourteenth amendments to the
United States Constitution. In doing so, he acknowledges that
his claim of Blakely error must fail as a result of the
California Supreme Court’s decision in People v. Black (2005) 35
Cal.4th 1238, 1244, 1254-1256, and that this court is bound by
the ruling in Black. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.) Nonetheless, defendant asserts that
his claim “remains viable” based on the law of New Jersey and
other states. Defendant’s claim must fail.
Not only does the holding in Black defeat defendant’s claim
of error, it fails because, as defendant concedes, one of the
factors used by the trial court to impose the upper term was the
fact that defendant’s “prior convictions as an adult or
sustained petitions in juvenile proceedings are numerous and
have been of increasing seriousness.” The rule of Blakely does
not apply to the use of prior convictions to increase the
penalty for a crime. (Apprendi v. New Jersey (2000) 530 U.S.
466, 490 [147 L.Ed.2d 435, 455 ].) Since one valid factor in
aggravation is sufficient to expose defendant to the upper term
(People v. Cruz (1995) 38 Cal.App.4th 427, 433), the trial
court’s consideration of other factors, in addition to
defendant’s prior convictions, to impose the upper term did not
violate the rule of Blakely.

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DISPOSITION
The trial court is instructed to amend its March 30, 2005,
minute order to correctly reflect its ruling. In all other
respects, the judgment is affirmed.
SIMS , Acting P.J.
We concur:
MORRISON , J.
HULL , J.

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