The trial court properly considered appellant’s poor performance on probation in imposing the upper term following a probation violation. Black was originally sentenced to probation for identity theft. Following a second petition to revoke probation, the court sentenced her to a drug rehabilitation program. Following discovery of more violations, the probation department recommended a two year prison sentence. The trial court held a hearing on the department’s supplemental report which detailed violations including possession of methamphetamine. The court found the allegations true and sentenced Black to the aggravated term of three years in prison. On appeal, Black argued that the circumstances at the time probation was granted did not justify an aggravated prison term, and that the trial court improperly relied on her poor performance on probation as the sole reason for imposing the upper term. The appellate court rejected the argument, finding that the trial court properly considered Black’s performance on probation.
Appellant’s waiver of Penal Code section 4019 credits in order to enter drug rehabilitation was knowing and intelligent. Black also contended that her waiver of section 4019 credits in order to participate in the drug-rehabilitation program was not knowing and intelligent. The appellate court rejected that argument as well, finding that Black signed the agreement indicating she understood the scope of the waiver. She also indicated on the record she had no questions concerning the waiver.