Filed 5/14/07 P. v. Lopez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Jennifer R.S. Detjen, Judge.

Barbara Coffman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant Hector Guillen Lopez was convicted of felony possession of methamphetamine. On appeal, he challenged the trial courts decision to deny probation pursuant to Proposition 36 (Pen. Code,^[1] 1210.1) because an immigration hold had been placed on him. This court remanded the matter for the trial court to determine whether appellant was eligible for Proposition 36 probation based on his immigration status, as stated in People v. Espinoza (2003) 107 Cal.App.4th 1069 (Espinoza):

... [O]nce a nonviolent drug possession offender has been deported from the United States, the premises, requirements, and objectives of Proposition 36 can no longer be satisfied. Accordingly, where the defendant faces a substantial likelihood of imminent deportation, such that his probation cannot effectively be conditioned on completion of a drug treatment program, we hold that that section 1210.1 does not preclude the trial court from exercising its discretion to deny probation. (Espinoza, supra, 107 Cal.App.4th at p. 1076, italics added.)

On remand, the trial court again denied probation and found there was a substantial likelihood of imminent deportation because appellant had been ordered deported, and he was in federal custody awaiting the resolution of his appeal of the deportation ruling. In the instant appeal, appellant contends the court improperly conducted the proceedings on remand in his absence, and that he should have been placed on Proposition 36 probation because the deportation order had been stayed pending further review. We will affirm.

FACTUAL AND PROCEDURAL HISTORY

On October 22, 2004, appellant was convicted in the Superior Court of Madera County of felony possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)), and misdemeanor possession of 28.5 grams or less of marijuana (Health & Saf. Code,  11357, subd. (b)). Appellant subsequently admitted that he served three prior prison terms ( 667.5, subd. (b)), but the court found insufficient evidence to prove he had not been free of prison custody within five years of the commission of the instant offenses.

On December 27, 2004, the court conducted the sentencing hearing. The prosecutor asserted appellant was not eligible for probation because he had prior felony convictions and had been deported to Mexico in 1998. Defense counsel asserted:

[Appellant] was convicted of one tenth of a gram of methamphetamine, possession, and he would be eligible, your Honor, for Prop 36. He should receive Prop 36. He has an INS [Immigration and Naturalization Service] hold. I dont know how that plays, but I do know that if [appellant] did not have an INS hold he would have to get Prop 36 because of the fact that even though he has priors he never did drug program, he has no strikes, and so hes been free of trouble or no convictions for the last five years. He under Penal Code section 1210 shall get a program. Then you have his INS hold, so technically cannot be released into a program. I understand that. But that is where he would stand if he did not have an INS hold. [] The family is working on getting the INS hold lifted, but presently the INS hold is intact. So these are all the issues I respectfully ask the Court to consider when imposing judgment today.

The court denied probation:

Due to the immigration hold and the pending deportation hearing, defendant appears not to be eligible for Prop 36. Due to his four prior felony convictions, hes presumptively ineligible for probation. There are no ... unusual factors fully applicable, so probation is denied....

The court imposed the upper term of three years for felony possession of methamphetamine and a $315 fine for the misdemeanor offense.

On appeal, appellant argued the trial court erroneously denied his request for probation pursuant to Proposition 36 because he was convicted of nonviolent offenses, and there was not a substantial likelihood of imminent deportation. Appellant cited to the probation report, which clearly states that although [appellant] currently had an immigration hold, the probation officer contacted Bureau of Immigration and Customs Enforcement Agent Bencomo and was advised that [appellant] will not be deported due to [his] previous military service. [emphasis added]

Respondent agreed appellant was eligible for Proposition 36 probation based on his current convictions, appellant had last used marijuana in 2003, and the underlying offenses occurred in 2004. Respondent acknowledged an immigration hold had been placed on appellant, but conceded the probation officer was advised appellant would not be deported because of his prior military experience. Respondent suggested remanding the matter to confirm appellants deportation status and determine if he was eligible for Proposition 36 probation pursuant to Espinoza.

On March 10, 2006, this court affirmed appellants convictions but remanded the matter for further appropriate proceedings based on the statements in the probation report that he would probably not be deported, and determine whether he was eligible for Proposition 36 probation.

In view of appellants reported use of marijuana in 2003 and the apparent absence of a substantial likelihood of imminent deportation, the trial court erred in finding that Proposition 36 treatment would have been futile and that appellants immigration status rendered him ineligible for probation under Proposition 36 and People v. Espinoza (2003) 107 Cal.App.4th 1069. The judgment of sentence should be vacated and the matter should be remanded to the superior court with instructions to determine whether appellant faces a substantial likelihood of imminent deportation. If so, the judgment of sentence may be reinstated. If not, the superior court should determine whether appellant is eligible for probation pursuant to Penal Code section 1210.1, subdivision (a). (Italics added.)

Hearings on Remand

Thereafter, the trial court conducted several hearings on remand to determine appellants immigration status. As explained post, appellant was not present for any of the hearings, but he was represented by counsel at all times.

On March 23, 2006, the trial court conducted the first hearing on remand, reviewed this courts opinion, and instructed the parties to determine whether appellant was around or had been deported. The court noted appellant had been sentenced to three years in prison in December 2004, he had 504 days of credit at that time, and he probably was not in prison at this time.

On April 28, 2006, the prosecutor advised the court appellant was in Yuba County Jail, in federal custody pending deportation. Defense counsel clarified that contested deportation proceedings were still pending. The court continued the matter because the remittitur had not been issued in the appeal, and to give defense counsel the opportunity to speak with appellants immigration attorney.

On May 10, 2006, this court issued the remittitur.

On June 2, 2006, the prosecutor submitted documentary evidence of appellants current statusa summary of the oral decision entered May 12, 2006, by the Immigration Court in San Francisco, signed by the Immigration Judge, which stated that appellant was ordered removed from the United States to Mexico, and any appeal would be due by June 12, 2006.

Defense counsel advised the court that appellant was not present because hes in custody somewhere. The prosecutor believed appellant had been in continuous federal custody since he had finished serving his time in this case. The prosecutor argued there was a substantial likelihood of appellants imminent deportation based on the deportation order. The court granted defense counsels request for another continuance to verify appellants deportation status with his immigration attorney.

Reinstatement of Prison Sentence

On June 9, 2006, defense counsel advised the court that appellant was not present because he was in custody somewhere. Defense counsel submitted a memorandum and series of documents which had been prepared by appellants immigration attorney, dated June 8, 2006. These documents reflected that on June 8, 2006, appellant filed a notice of appeal of the deportation order with the Board of Immigration Appeals (BIA); he was detained in the Yuba County Jail on that date; the deportation appeal was based on the argument that he was not convicted of a deportable offense in 1996, the sale or offer to sell methamphetamine in violation of Health and Safety Code section 11379; that statute defined divisible offenses and solicitation of a sale was not a deportable offense; and if appellant was not subject to deportation for the 1996 conviction, he would be eligible for relief for the remaining convictions which do cause him to be deportable.

These documents further reflect that the United States Department of Justice also filed a notice of appeal to challenge the Immigration Courts apparent decision to reopen appellants 1996 deportation case.

These documents were accompanied by a memorandum to defense counsel from appellants immigration attorney, who reported that both appellant and the government had filed appeals of the Immigration Courts deportation order, and appellant was unlikely to be removed from the United States in the near future because the Code of Federal Regulations provided for a mandatory stay while the appeal was pending (8 C.F.R.  1003.6), and the Ninth Circuit automatically granted stays while appeals were pending before that court.

Defense counsel argued the existence of the immigration appeal stayed the deportation order, such that appellant was eligible for Proposition 36 probation. The prosecutor replied such an argument was ridiculous because appellant was in federal custody and unavailable for treatment, the immigration appeal could take from 90 days to one year to resolve, and the federal court already ordered his deportation to Mexico. Just because its on appeal doesnt mean that hes imminently available for Proposition 36. Defense counsel insisted appellants present status under the stay order meant he was not subject to imminent deportation.

The court clarified the pending question was whether there was a substantial likelihood of deportation in light of the federal courts deportation order. Defense counsel replied the deportation order was not valid because the appeal resulted in an automatic stay of that order, appellant was not going to be removed pending appeal, and there was no substantial likelihood of deportation at this time.

The court asked about appellants time credits, and defense counsel replied appellant was probably timed out on the prison sentence imposed in this case. The court noted that if the matter was continued for a year or two, appellant was not deported, and the matter returned for resentencing, the court could place appellant on probation and order him to comply with Proposition 36, but if appellant did not complete the program there is nothing we can do about it because you are already timed out. The court was not inclined to indefinitely delay a case to determine whether appellant actually had been deported.

The court queried [h]ow far does the 5th District Court of Appeal think that trial court should go in waiting? The prosecutor reviewed this courts opinion, and noted the matter was remanded because of the federal agents statement in the probation report, that he was absolutely sure appellant would not be deported because of his military service. The prosecutor argued the current situation was completely different because the federal court had subsequently decided that appellant would be deported. The prosecutor argued that notwithstanding the pending immigration appeal, the federal courts deportation order meant appellant was unavailable for treatment and there was a substantial likelihood of imminent deportation.

The court reviewed the materials from appellants immigration attorney, and noted it only contained the federal courts deportation order and there was no stay order before the court. Defense counsel conceded that he attached legal authorities which explained the effect of an appeal, and a stay order had not been issued yet.

The court found the only pending issue was whether appellants prison sentence should be reinstated.

THE COURT: ... And I cannot at this time make a finding that he is not substantially likely to be deported. Its the only two findings that I need to make today. Is there substantial likelihood of deportation or not? Should the sentence be reinstated or not?

Defense counsel asked the court to continue the matter to see what occurs in the immigration appeal. Counsel also asked the court not to reimpose the prison term because there was no evidence appellant was subject to imminent deportation. The court asked about the levels of appeal of the deportation order. Defense counsel believed the Ninth Circuit and the United States Supreme Court were the last avenues of review.

The court was inclined to reinstate the three-year prison sentence previously imposed:

When [appellant] was sentenced immigration did have a hold on him. The statement ... in the probation report was suspect given the fact of that hold. And the probation report cited BICE Agent. What was interesting about that statement was it was so inconsistent with the immigration hold that ... the Court did not give it much weight. If an agent was of the opinion that a defendant would not be deported, then why didnt the agent take the hold off of him? And as the factsas what occurred since then bear out, the agent was, for whatever reason he said that, he was wrong. The immigration hold remained and the Immigration Court ordered that he be deported. [][]

And the Court in ... Espinoza said if there is a substantial likelihood of imminent deportation then its futile to order treatment under Prop 36. [][]

Does that mean in fact not a substantial likelihood of imminent deportation, but the defendant has to actually be deported before a court can deny him treatment under Prop 36? If thats the law the impossibility of it is clear. No court would be able to act until the defendant was gone and then no sentencing would occur. Its a situation that is impossible if thats the interpretation of Espinoza.

The court further noted that in appellants state criminal appeal, this court ordered the remand based upon the federal agents statement that appellant would not be deported, even though an INS hold had already been placed on him. The court rejected defense counsels argument that the entire matter had to be continued for months or years until appellant exhausted his appeals of the deportation order.

Defense counsel asserted that appellants immigration attorney believed his deportation appeal would be successful, but there was no set date for consideration of that appeal. The prosecutor pointed out there was no order which reflected the deportation order had been stayed. Defense counsel insisted the appeal automatically stayed the deportation order, but he did not know how long the stay would last.

The court reviewed the documents about the immigration appeal, and noted appellants challenge to the deportation order concerned whether appellants conviction was one which required deportation.

THE COURT: ... There is nothing in here about military service that I can see on a brief reading. Maybe Im missing it. And it appears that based on this argument that he was also deported because of his prior convictions, 1992, 1995 convictions.

I wasntwe havent received anything other than the final order from the immigration judge and it doesnt state the reasons for the deportation, but the appeal seems to indicate that he was deported because of his criminal record, his prior convictions as well as this conviction, and that seems to be what they are arguing is that he should not be deported because of all those convictions.

Defense counsel conceded appellants immigration attorney had just filed the deportation appeal the previous day, the deadline for the deportation appeal was June 12, 2006, and counsel presumed a stay would be issued. Counsel asked for another continuance to confirm the status of the deportation appeal and whether a stay had been issued, and the court agreed.

On June 22, 2006, defense counsel advised the court that he spoke with appellants immigration attorney and confirmed appellant was being held in the Yuba County Jail under federal immigration custody. To get him here would take a writ and the U.S. Marshals may not act upon that writ. So I dont believe it would be possible to have [appellant] present for his court appearances. Defense counsel believed the immigration appeal could take up to six months, and again cited to federal authorities for the proposition that a legitimately filed appeal stayed a deportation order pending a ruling from the BIA. The prosecutor objected to any further stays or continuances, and noted this courts remand was based on the federal agents statement about appellants prior military service, but appellant had already been ordered deported. Defense counsel replied it was still unknown whether appellant was substantially likely to be deported since his appeal could be successful.

The court decided to reinstate appellants prison sentence:

The information that was known by the Court in December of 2004, when it sentenced [appellant], is that [appellant] was deported in 1998, and as of December 2004 had an immigration hold on him and was awaiting a deportation hearing .

There was a statement by an agent that he did not think [appellant] would be deported again, and the reasons why he thought that. The Court did not grant Prop 36 probation.

The Court may not have stated it clearly in the transcript, but the Court did find there was a substantial likelihood of deportation based on the facts that was before it.

The court reviewed the facts in Espinoza, where the defendant had been deported in 1996 and 2001, illegally reentered the country, he was convicted of two more offenses, and an immigration hold was placed on him. Espinoza held that based upon those facts, there was a substantial likelihood of deportation to deny treatment under Proposition 36. The court turned to the facts of the instant case and noted we have more than the facts in Espinoza since appellant had previously been deported in 1998; an immigration hold was placed on him; on May 12, 2006, an immigration judge ordered appellant deported to Mexico, in a case number that was different from the immigration hold case listed in the probation report; and on June 2 and 7, 2006, appellant and the government, respectively, filed appeals of that deportation order. The court determined that appellant moved to reopen the 1998 deportation order and argued he never should have been deported. The immigration court allowed that order to be reopened, completely reheard the matter, and again ordered deportation.

So both sides are appealing it, the Governments saying the immigration judge should not have reopened that, the deportation that occurred in 1998 should have stood. And the defense is saying, Not only should it be reopened, but I shouldnt have been deported for what I did in 1998. None of which has to do with this case....

But what we have is [appellant] who cant be brought before this court. Federal authorities will not bring him because hes being held in the Yuba County Jail. Even if the Court issued a writ, they may not bring him here for this hearing.

The issue is, is he available for Prop 36 treatment? And clearly he is not. I cant even get him before this court because hes being held on an immigration hold.

And ... Espinosa [sic] ... clearly stated that a decision, whether to grant probation to a deportable alien presents a special issue. The case law is held that the trial judge must assume, bearing presentation of evidence to the contrary, a defendant would be deported upon completion of any term of incarceration imposed. And that deportation is especially likely where defendants convicted of possession for sale of a controlled substance.

Now, Mr. Espinosa [sic]and thats what he was convicted of. [Appellant] was not. He was convicted of possession of methamphetamine. I dont know if thats a difference that makes a difference. But this Court cannot provide Prop 36 treatment to [appellant] because we cant even get him physically here because of the deportation hold.

So this Court finds there is a substantial likelihood of deportation as that is understood and defined in ... Espinosa [sic], and reinstates the sentence previously imposed in December of 2004.

On June 27, 2006, the court filed a new abstract of judgment, reflecting the three year term for the felony conviction.

On June 30, 2006, appellant filed a timely notice of appeal. He contends the court improperly conducted the hearings on remand in his absence, and that there was no substantial likelihood of imminent deportation because of his pending appeal of the deportation order.

DISCUSSION

I.

APPELLANTS ABSENCE FROM THE HEARINGS ON REMAND

Appellant contends the court violated his right to due process when it conducted all the hearings on remand, and reinstated the state prison sentence, without his presence in court. Appellant asserts the record infers defense counsel never contacted him and did not know where he was being held, appellant never waived his presence, and the courts decision to sentence him in abstentia violated due process. Appellant relies on both state and federal authorities in support of his arguments.

A criminal defendants right to be personally present at trial is guaranteed by the Sixth and Fourteenth Amendments of the federal Constitution, as well as by article I, section 15 of the California Constitution and by sections 977 and 1043 of the California Penal Code. [Citations.] A defendant, however, does not have a right to be present at every hearing held in the course of a trial. [Citation.] A defendants presence is required if it bears a reasonable and substantial relation to his full opportunity to defend against the charges. [Citation.] The defendant must show that any violation of this right resulted in prejudice or violated the defendants right to a fair and impartial trial. [Citation.] (People v. Hines (1997) 15 Cal.4th 997, 1038-1039; see also People v. Ervin (2000) 22 Cal.4th 48, 74; People v. Waidla (2000) 22 Cal.4th 690, 742; People v. Davis (2005) 36 Cal.4th 510, 530, 532.) A sentencing hearing constitutes an essential and material phase of the criminal proceeding. (People v. Arbee (1983) 143 Cal.App.3d 351, 355-356.) A defendant is thus required to be present when a matter is remanded for the trial court to exercise its sentencing discretion. (Ibid.; People v. Rodriguez (1998) 17 Cal.4th 253, 260, superseded by statute on another ground as noted in People v. James (2001) 91 Cal.App.4th 1147, 1149.)

Our review of the instant record reflects that appellants absence from the hearings on remand was not prejudicial. Appellant had completed service of the three-year prison term imposed in this case and was being held in the Yuba County Jail, in federal custody pending deportation. Indeed, defense counsel advised the court: To get him here would take a writ and the U.S. Marshals may not act upon that writ. So I dont believe it would be possible to have [appellant] present for his court appearances. The record further reflects that appellants presence at the hearing would not have been helpful as to the contested legal issuewhether the immigration courts deportation order resulted in a substantial likelihood of imminent deportation. Defense counsel ably represented appellant, repeatedly requested and obtained continuances to clarify appellants immigration status, presented the court with documentary evidence as to the ruling of the federal immigration court and impact of an appeal, and urged the court to further continue the matter to await the ruling of the BIA. The court did not increase appellants sentence but simply reinstated the term already imposed. Appellants absence from the hearings on remand was harmless under both Chapmanv.California (1967) 386 U.S. 18 (Chapman) and Peoplev.Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Davis, supra, 36 Cal.4th at p. 534.)

Appellant contends that defense counsel did not even know his whereabouts, but the record refutes this argument. On March 23, 2006, the trial court conducted the first hearing on remand, even before the remittitur was issued, and instructed the parties to determine appellants whereabouts and status. Thereafter, counsel repeatedly requested and received continuances to contact appellants immigration attorney and determine his location and status. At the next hearing on April 28, 2006, the prosecutor advised the court appellant was in Yuba County Jail, in federal custody pending deportation, and defense counsel clarified that contested deportation proceedings were still pending. On June 9, 2006, defense counsel filed documents with the court which confirmed appellant was in custody in the Yuba County Jail pending deportation, and that he filed an appeal of the deportation order. Counsel was well aware of appellants status and location, and advised the court that the United States Marshals would not transport appellant to Madera County for the instant hearings.

Appellant relies on Hays v. Arave (9th Cir. 1992) 977 F.2d 475 (Hays) for the argument that his absence from the hearings on remand requires automatic reversal for structural error. In Hays, the Ninth Circuit held that a defendant has both a state and federal right to be present at his sentencing. His state right emanates from the California Constitution and section 1193 of the California Penal Code, which ... provided that [the defendant] must be personally present when judgment is pronounced against him, unless, after the exercise of reasonable diligence to procure the presence of the defendant, the court shall find that it will be in the interest of justice that judgment be pronounced in his absence. [The defendants] federal right emanates from the Constitution: he has both a due process right to be present at his sentencing [citations], as well as a Sixth Amendment right to effective assistance of counsel at sentencing. [Citations.] (Id. at pp. 476-477.) Hays held the defendants absence from the sentencing hearing constituted structural error and was reversible per se, and was not subject to a harmless error analysis. (Id. at pp. 479-482.)

In Rice v. Wood (9th Cir. 1996) 77 F.3d 1138 (Rice), however, the Ninth Circuit held that a defendants absence from the courtroom is subject to a harmless error analysis. (Id. at p. 1142.) Rice noted it was an open question as to whether a defendants absence constituted structural or trial error. (Id. at p. 1140, fn. 2.) The Supreme Court has stated that a defendant has a due process right to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge. [Citations.] However, that is not true when presence would be useless, or the benefit but a shadow. [Citations.] The Court has held there is no constitutional right to be present in proceedings where the defendant could have done more to help his cause than in this case. [Citations.] (Id. at pp. 1140-1141, fn. 2.)

Rice held that the defendants absence from the courtroom at the time the jury returned its verdict as to punishment, if it was constitutional error at all ... was not structural error and is therefore subject to harmless-error analysis. (Rice, supra, 77 F.3d at p. 1144.) Rice held the defendants absence was harmless because it is unlikely that a juror will change his vote merely because defendant is present at return of the verdict and polling. (Id. at p. 1144.) After the jurys verdict was read, each juror was polled individually and expressed his assent to the verdict as announced. There is nothing that suggests any juror hesitated or expressed doubt or uncertainty about the decision. [The defendant] has proffered no evidence from those present in the courtroom that any of the jurors displayed the least discomfort with the process pursuant to which the verdict was received. (Id. at p. 1145.) Rice overruled Hays to the extent it was inconsistent with its analysis. (Id. at p. 1144, fn. 8.)^[2] As explained ante, appellants absence from the hearings on remand was not prejudicial under either Chapman or Watson.

We thus conclude appellants absence from the hearings on remand was not prejudicial under the circumstances of this case, defense counsel was aware of his location and status, and counsel supplied the court with the relevant documents and information from which it could decide the disputed legal question of whether there was a substantial likelihood of imminent deportation.

II.

THE COURTS REINSTATEMENT OF THE PRISON SENTENCE

Appellant contends the court should have placed appellant on Proposition 36 probation because his appeal of the deportation issue resulted in an automatic stay such that there was not a substantial likelihood of imminent deportation.

Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, took effect on July 1, 2001. The act added numerous provisions to the Penal Code, including section 1210.1. Section 1210.1, subdivision (a) provides in part: Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program.... When a defendant is eligible for Proposition 36 treatment, it is mandatory unless he is disqualified by other statutory factors .... [Citation.]

The purpose of the Substance Abuse and Crime Prevention Act is [t]o divert from incarceration into community-based substance abuse treatment programs non-violent defendants, probationers and parolees charged with simple drug possession or drug use offenses. [Citations.] [Citation.]

Section 1210.1, subdivision (b) sets forth five exceptions for otherwise eligible defendants. The exceptions are: 1) conviction of prior strike offense within five years; 2) convictions in the same proceeding for a nondrug misdemeanor or for any felony; 3) firearm involvement; 4) refusal of drug treatment; and 5) two prior failures in Proposition 36 treatment programs and proof of unamenability to drug treatment. [Citation.] [Citation.] (People v. Muldrow (2006) 144 Cal.App.4th 1038, 1042-1043.)

When dealing with an illegal or undocumented alien, the trial judge must assume, barring presentation of cognizable and credible evidence to the contrary, a defendant will be deported ... upon his release from custody when no period of incarceration is imposed. (People v. Sanchez (1987) 190 Cal.App.3d 224, 230.) It is not unreasonable for the trial court to assume that the INS will act to deport defendant in furtherance of its federal statutory duties. (See Evid. Code,  664 [presumption that official duties are regularly performed].) (Espinoza, supra, 107 Cal.App.4th 1069, 1075, fn. 5.)

Illegal alien status is a legitimate factor for consideration but does not categorically preclude a grant of probation. (People v. Sanchez, supra, 190 Cal.App.3d at p. 231; People v. Cisneros (2000) 84 Cal.App.4th 352, 358.) However, a trial court is free to exercise its discretion to deny probation where the defendant faces a substantial likelihood of imminent deportation, such that his probation cannot effectively be conditioned on completion of a drug treatment program .... (Espinoza, supra, 107 Cal.App.4th at p. 1076.) If a defendant is deported, probation is ineffective: Absent a treaty allowing probation department supervision in Mexico, the department has no legal authority in Mexico to implement the necessary supervision. (See In re Manuel P. (1989) 215 Cal.App.3d 48, 81 (dis. opn. of Wiener, J.).)

In Espinoza, the defendant pleaded no contest to a nonviolent drug possession offense and he was sentenced to prison. On appeal, the court found the defendant was properly excluded from probation under section 1210.1 because he was an illegal alien subject to deportation. In view of the substantial likelihood that defendant will be deported, we hold that probation is not mandatory under Proposition 36 because it is impossible to condition such probation on defendants completion of a drug treatment program. (Espinoza, supra, 107 Cal.App.4th at p. 1071.) We do not believe that section 1210.1 compels the trial court to grant probation when the primary purpose and condition of that probationthat the defendant obtain drug treatmentcannot effectively be achieved. (Id. at p. 1073.)

Espinoza held that to achieve the fundamental objectives of Proposition 36, section 1210.1 places two important mandates on the trial court. First, assuming the defendant qualifies as a nonviolent drug offender eligible for drug treatment, the court must offer probation in lieu of a jail sentence. Second, and of even greater importance in attaining the objectives of Proposition 36, such probation must be conditioned on participation in and completion of an appropriate drug treatment program. Thus, the ultimate objective of Proposition 36 is not to mandate probation in lieu of jail sentences. It is to substitute community-based drug treatment for jail sentences as a means of dissuading eligible offenders from continued drug use. As the voters were informed in the opening sentence of the ballot pamphlet summary, Proposition 36 [r]equires probation and drug treatment, rather than incarceration, for simple drug possession offenses. [Citation.] (Espinoza, supra, 107 Cal.App.4th at p. 1074, italics in original, fn. omitted.)

Espinoza disagreed with the defendants argument that his current conviction might not result in deportation, and instead found ample reason to assume that he would be deported again. He is admittedly here illegally. He has twice previously been deported after committing crimes, and he continued to violate this countrys laws after twice illegally reentering this country following deportation. By any measure, defendant is a prime candidate for deportation. (Espinoza, supra, 107 Cal.App.4th at p. 1075, fn. omitted.) Espinoza noted that the decision whether to grant probation to a deportable alien presents special issues, and discussed the laws and policies surrounding deportation. (Id. at p. 1074.)

It is not unreasonable for the trial court to assume that the INS [Immigration and Naturalization Service] will act to deport defendant in furtherance of its federal statutory duties. (See Evid. Code, 664 [presumption that official duties are regularly performed].) In fact, it is California public policy to facilitate deportation of undocumented aliens who commit drug offenses in this state. Penal Code section 5025 establishes procedures to identify and transfer custody of undocumented aliens incarcerated in California to the INS. Uncodified legislative findings accompanying the adoption of section 5025 emphasized that one of its overriding purposes was to focus INS deportation efforts in California on undocumented aliens involved in drug-related crimes, in part to alleviate the burden of these crimes on our communities and courts. (Historical and Statutory Notes, 51C Wests Ann. Pen. Code (2000 ed.) foll. 5025, p. 225.) Health and Safety Code section 11369 mandates notice to the INS whenever there is reason to believe that a person arrested for certain drug offenses in California, including simple possession, may not be a citizen of the United States. (Espinoza, supra, 107 Cal.App.4th at p. 1075, fn. 5.)

Espinoza rejected the defendants argument that he should be offered drug treatment wherever he might be located: [W]here the defendant faces a substantial likelihood of imminent deportation, such that his probation cannot effectively be conditioned on completion of a drug treatment program, we hold that that section 1210.1 does not preclude the trial court from exercising its discretion to deny probation. (Espinoza, supra, 107 Cal.App.4th at p. 1076.)

In the instant case, the trial court properly declined to grant Proposition 36 probation and found a substantial likelihood of imminent deportation. Appellant suffered prior convictions and was deported in 1998, he later returned to the United States, he committed the underlying offenses in this case, and an immigration hold was placed on him. We remanded the matter based upon the statements in the probation report, that a federal agent stated appellant would not be deported because of his prior military service. In the interim, however, the federal court conducted the immigration hearing and ordered appellant deported. Appellant filed a timely appeal of that ruling, but his appeal was based upon whether his earlier offenses properly triggered deportation, and did not raise any issues of whether deportation was inappropriate because of any prior military service.

Appellant raises the same issue the parties addressed belowthat there was no substantial likelihood of imminent deportation because his appeal to the BIA automatically stayed the deportation order. While appellant never presented the court with any type of stay order, he cited to several authorities for the proposition that such an appeal stayed a deportation order. Nevertheless, the question in this case is whether appellant was an appropriate candidate for Proposition 36 probation, or whether there was a substantial likelihood of imminent deportation. Contrary to appellants arguments, the question is whether there is a substantial likelihood of imminent deportation, not whether a defendant has exhausted his appeals and will definitely be deported. In Espinoza, the court found ample reason to assume the defendant would be deported again. (Espinoza, supra, 107 Cal.App.4th at p. 1075.) The facts in this case support a similar finding that appellant was not an appropriate candidate for Proposition 36 probation, and the court was not obliged to wait indefinitely to determine whether he actually would be deported.

III.

IMPOSITION OF THE UPPER TERM

At the original sentencing hearing, the trial court herein imposed the upper term for the felony offense in count II. At the hearing on remand, the court reimposed the upper term. Appellant has not challenged the imposition of the upper term as violating Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We have reviewed the trial record and will conclude the courts imposition of the upper term did not violate Cunningham.

A. Background

Appellant was convicted of count II, felony possession of methamphetamine (Health & Saf. Code,  11377, subd. (a)), and count I, misdemeanor possession of 28.5 grams or less of marijuana (Health & Saf. Code,  11357, subd. (b)).

According to the probation report, appellant had a lengthy felony record which began in 1982, which primarily consisted of narcotics offenses, he had served prior prison terms, and the felony conviction in this case was appellants fifth felony conviction. He was deported to Mexico in 1998 after a felony conviction and violation of parole. Appellant was presumptively ineligible for probation, and there were no unusual circumstances where the interests of justice would be served by granting probation. The aggravating circumstances were that appellants prior convictions were numerous; he had served prior prison terms; and his prior performance on probation and parole was unsatisfactory because he committed new crimes while on probation, and he violated probation and parole. There were no mitigating circumstances. The probation report recommended the upper term of three years for count II, felony possession of methamphetamine.

At the sentencing hearing, defense counsel argued appellants record primarily consisted of nonviolent drug offenses, the instant case involved a small amount of methamphetamine, and asked the court to consider probation or the lower term. Defense counsel added the court could not impose the upper term by using factors that had not been found true by the jury, based on Blakely v. Washington (2004) 542 U.S. 296 (Blakely). The prosecutor replied appellant was a poor candidate for probation because of his lengthy record and prior deportation, and requested the upper term.

The court denied probation and made the following findings.

... Due to his four prior felony convictions, hes presumptively ineligible for probation. There are no factors in ... unusual factors fully applicable, so probation is denied. Due to his significant prior record of convictions, the Court finds that to be an aggravating factor. [] Finds there are no factors in mitigation fully applicable. (Italics added.)

The court imposed the upper term of three years for the felony count II.

B. Analysis

In Blakely, the United States Supreme Court reaffirmed the rule announced in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi): Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Blakely, supra, 542 U.S. at p. 301, quoting Apprendi, supra, 530 U.S. at p. 490.) One year later, the United States Supreme Court reiterated the right to a jury trial requires that [a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt. (United States v. Booker (2005) 543 U.S. 220, 244.)

In Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856], the court held Californias Determinate Sentencing Law violates a defendants Sixth and Fourteenth Amendment rights to a jury trial to the extent it permits a trial court to impose an upper term based on factsother than the fact of a prior convictionfound by the court rather than by a jury beyond a reasonable doubt.

As this Courts decisions instruct, the Federal Constitutions 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. Apprendi v. New Jersey, 530 U.S. 466 (2000); Ring v. Arizona, 536 U.S. 584 (2002); Blakely v. Washington, 542 U.S. 296 (2004); United States v. Booker, 543 U.S. 220 (2005). [T]he relevant statutory maximum, this Court has clarified, is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. Blakely, 542 U.S., at 303-304 (emphasis in original).... [] ... []

... [O]ur decisions from Apprendi to Booker point to the middle term specified in Californias statutes, not the upper term, as the relevant statutory maximum. Because the DSL [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. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. at pp. 860, 871, fn. omitted].)

In the instant case, the probation report identified multiple aggravating circumstances based on appellants prior recidivism, but the trial court relied on a single factorappellants numerous prior felony convictionsto impose the upper term; there were no mitigating factors. The trial courts imposition of the upper term does not require reversal of the sentence because it is settled that only a single aggravating factor is required to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728; People v. Earley (2004) 122 Cal.App.4th 542, 550.) Here, the trial court relied on appellants prior convictions to impose the upper term, as permitted by Cunningham and Blakely. Even if we were to assume error under Cunningham, the error was harmless beyond a reasonable doubt. (Washington v. Recuenco (2006) __ U.S.__ [126 S.Ct. 2546, 2553] [Failure to submit a sentencing factor to the jury ... is not structural error and is subject to harmless error rule]; Chapman v. California, supra, 386 U.S. at p. 24; People v. Sengpadychith (2001) 26 Cal.4th 316, 327.) On this record, we have no doubt that appellants jury, applying the reasonable doubt standard, would have reached the same conclusion as the trial court, and found true beyond a reasonable doubt the aggravating factor that appellants prior felony convictions were numerous.

DISPOSITION

The judgment is affirmed.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

^* Before Harris, Acting P.J., Wiseman, J. and Levy, J.

^[1] All further statutory citations are to the Penal Code unless otherwise indicated.

^[2] In People v. Concepcion, review granted November 15, 2006, S146288, the Fourth District disagreed with Rice and held a defendants involuntary absence from the courtroom during the prosecutions presentation of evidence was structural error and reversible per se. The California Supreme Court granted review of Concepcion in November 2006, and the case is pending.