dissenting.
Villanueva admitted at his probation revocation hearing that he contacted the victim in violation of a condition of his probation, and his sentence was increased beyond the presumptive range based on that admitted probation violation. Blakely and its progeny permit a judge to sentence a defendant beyond the presumptive range based on facts admitted by the defendant. Here, the increase in sentence complied with Blakely because it was based on Villanueva's own admission. Because the majority concludes otherwise, I respectfully dissent.
Under Blakely, "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment" of the crime charged. Blakely v. Washington, 542 U.S. 296, 313, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (emphasis omitted). The problem in Blakely was that the defendant's aggravated sentence was based on facts found by a judge, rather than a jury. Id. at 303. Blakely, however, expressly permits a judge to impose an aggravated sentence "on the basis of the facts ... admitted by the defendant" Id. (internal quotation marks and emphasis omitted); see also United States v. Booker, 543 U.S. 220, 224, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2466, 168 L.Ed.2d 203 (2007). Therefore, where a defendant admits to facts constituting a violation of a condition of probation, a judge may rely on that admission to impose a sentence within the aggravated range.
The majority mistakenly finds that the result it reaches is required by People v. Isaacks, 133 P.3d 1190 (Colo.2006). Unlike the majority, I do not find Villanueva to be in a "situation very similar" to that of the defendant in Isaacks. Maj. op. at 1285. The increase in sentence imposed on Isaacks was attributable solely to a criminal conviction (a guilty plea), 133 P.3d at 1190, not to a probation violation, as is the case here. Under longstanding U.S. Supreme Court precedent, ["plrobation revocation ... is not a stage of a criminal prosecution, [although it] does result in a loss of liberty." Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Probation revocation deprives a probationer "not of the absolute liberty to which every citizen is entitled," but rather "only of the conditional liberty properly dependent on observance of special [probation] restrictions." - Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) (discussing parole revocation); see also Gagnon, 411 U.S. at 782, 93 S.Ct. 1756 (applying Brewer's analysis to probation revocation). Therefore, "the full panoply of [constitution-all rights due a defendant in [a eriminal prosecution]" is not required in a probation revocation proceeding, Brewer, 408 U.S. at 480, 92 S.Ct. 2593, including the right to a *1241jury trial. See Byrd v. People, 58 P.3d 50, 56 (Colo.2002); see also United States v. Carlton, 442 F.3d 802, 808-09 (2d Cir.2006) (rejecting Blakely challenge to resentencing after revocation of supervised release by judge using a preponderance of the evidence standard on ground that increase in sentence was attributable to supervised release violation, not to initial original conviction).
Moreover, our concern in Isaacks with an implied admission simply is not present here. In Isaacks, the People argued that the defendant had impliedly admitted facts contained in a presentence report by not objecting to the report. 183 P.3d at 1192. In fact, the question on which we granted certiorari was "[wlhether a defendant's failure to make corrections or additions to his presentence report when asked by the court constitutes an admission of information not related to the elements of the crime [that] permits an aggravated sentence under Blakely ...." Id. We rejected the People's implied admission argument, holding that "a defendant's failure to object to facts in a presentence report does not constitute an admission for purposes of Blakely ... unless the defendant makes a constitutionally sufficient waiver of his right to a jury trial on the facts contained in the report." Id. Significantly, a presentence report is written by a probation officer, not the defendant. See Crim. P. 32(a)(1) ("[The probation officer shall make an investigation and written report to the court before the imposition of sentence or granting of probation."). Thus, a factual statement in a presentence report such as the one at issue in Isaacks-although it may be based on information provided by the defendant-comes from the probation officer. Here, by contrast, the admission came from the defendant himself during the probation hearing. Because there is no argument that Villanueva's admission was implied, Isaacks does not control the outcome of this case.
The majority requires that, before an admission can ever be used as the basis for a sentence in the aggravated range, the defendant must specifically be informed-prior to making any admissions-of his right to have a jury determine the facts necessary for an aggravated sentence. See maj. op. at 12834. Where that has not happened, according to the majority, the admission must be ignored. Id. In this case, the majority sets aside Villa-nueva's admission on this ground even though Villanueva waived his right at sentencing "to a jury of 12 people on all issues of guilt," was informed at probation revocation that he had the right to a hearing at which "the district attorney would have to prove by a preponderance of the evidence" that he had violated a condition of his probation, and was found to have understood "his right to a hearing and ... knowingly and voluntarily admitted to violation of probation."
While there may be dicta in Isaacks suggesting such an across-the-board requirement of a specific warning, I would not read the case so broadly. The fact that the pre-sentence report in Isaacks contained statements that could be read as implied admissions may have justified a cautious approach toward those statements; there is nothing of similar concern here.
In sum, Blakely and Isaacks addressed instances in which aggravating facts were proven through evidence beyond the defendants' own admissions. By contrast, Villa-nueva's aggravated sentence was based solely on his own admission. Because I would find his sentence proper under Blakely and Isaacks, I respectfully dissent.