Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. No. 1247915 John G. Whiteside, Judge.
Alex N. Coolman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before, Levy Acting P.J., Gomes, J., and Hill, J.
INTRODUCTION
On September 2, 2008, appellant, Pablo Humberto Astorga, was charged in an information with possessing narcotics in jail (Pen. Code, § 4573.6). It was further alleged Astorga had a prior serious felony conviction within the meaning of the three strikes law. On October 29, 2008, a jury found Astorga guilty of the allegation. Astorga waived his constitutional rights and admitted the prior serious felony conviction.
Unless otherwise indicated, all statutory references are to the Penal Code.
Astorga filed a request pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) for the trial court to dismiss the prior serious felony allegation. On January 26, 2009, the court sentenced Astorga to prison for the midterm of three years, which it doubled to six years pursuant to the three strikes law. On appeal, Astorga challenges the trial court’s imposition of the midterm sentence.
FACTS
Offense
On June 19, 2008, Astorga was an inmate at the Stanislaus County Honor Farm, a part of the county jail. At about 1:00 a.m., Deputy Alexander Leon was outside Barracks No. 4 for fresh air. The barracks are surrounded by a chain-link fence. Leon heard an unusual grunting noise from Housing Unit F.
When Leon entered the housing unit, he saw Astorga standing outside of his bunk. Leon pointed his flashlight on the area and noticed a red balloon on the floor. Leon ordered Astorga to put his hands on his head. After turning on the lights, Leon saw a black, tar-like substance that was tightly wrapped in a clear plastic bag. The bag, another bag containing tobacco, and the balloon were less than a foot from Astorga’s left foot. A criminalist tested the black, tar-like substance. It was.23 grams of heroin.
Astorga testified that when Leon saw him, he was eating a bag of “Hot Cheetos.” Astorga denied having those items in his possession prior to Leon’s arrival. Astorga never saw the red balloon before and did not use heroin while in the housing unit. Astorga said he told Leon the heroin was his. Leon told Astorga he “would go back like as if nothing had happened.”
Sentencing Hearing
The probation officer’s report set forth Astorga’s potential punishment as follows: “Count I: (4, 6, or 8 years) x 2.” Astorga had prior felony convictions in 1984 for burglary (§ 459), in 1988 for transportation of a controlled substance (Health & Saf. Code, § 11352), in 1998 for escape (§ 4532, subd. (b)), in 2004 for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and in 2006 for possession of a designated controlled substance (Health & Saf. Code, § 11350). Astorga had misdemeanor convictions in 1993 for driving with a suspended license (Veh. Code, § 14601.2, subd. (a)), in 1995 for distribution of hypodermic needles (Bus. & Prof. Code, § 4149), and in 1996 for battery of a peace officer (§ 243, subd. (b)).
The probation officer listed no mitigating factors and four aggravating factors: the defendant’s prior convictions as an adult are numerous, he has served a prior prison term, he was on probation when he committed this offense, and his prior performance on probation was unsatisfactory.
Astorga filed a written motion requesting the trial court exercise its discretion pursuant to Romero to strike the prior serious felony conviction. Astorga requested that he be placed in the California Rehabilitation Center (CRC).
At the sentencing hearing, defense counsel requested the court strike the prior serious felony conviction for burglary because it was a very old prior conviction. Counsel asked the court to place Astorga in CRC. The prosecutor noted Astorga had many convictions and was not the type of defendant who should be subject to Romero.
The court noted that although Astorga’s prior felony conviction was old, Astorga had not led a blame-free life since that conviction and denied Astorga’s Romero request. Defense counsel then argued that because of the relatively small amount of contraband found, the court should consider the mitigated term. The probation report set forth the sentencing triad, doubled each term pursuant to the three strikes law, and then, confusingly, placed “x 2” after the doubled prison term choices. The report was unclear as to whether the prison term choices were already double or if they were to be doubled. Apparently following the probation report, counsel stated Astorga would receive a mitigated term of four years, doubled to eight under the three strikes law.
Section 4573.6 carries a sentence of two, three, or four years.
The court noted Astorga would not be eligible for CRC because of his criminal record. The court initially set Astorga’s term at four years, which represented the mitigated term. The court noted Astorga had a relatively small amount of contraband and Astorga would be serving a longer sentence by operation of the three strikes law. The court doubled Astorga’s “base term” to eight years. Defense counsel and the court then detected the error in the probation report. The prosecutor explained the probation officer had already doubled the sentencing triad in the probation report and explained the triad was two, three, or four years.
The court repeated the sentencing triad for section 4573.6. The court fixed the base term at three years, doubled for prior serious felony conviction for a total term of six years in prison. The court stated, “Midterm is justified by all the facts and circumstances of the case, the defendant’s prior record, and all the circumstances.”
DISCUSSION
Astorga contends the trial court improperly reasoned backward in choosing his sentence, thereby abusing its sentencing discretion in selecting the midterm sentence. Astorga also argues the trial court failed to properly state its sentencing choice on the record. Astorga alternatively contends his counsel was ineffective for failing to object to the trial court’s imposition of the midterm. Respondent argues that Astorga forfeited his right to challenge the court’s sentence on appeal because he did not lodge an objection when the court imposed the midterm sentence.
Forfeiture
The parties agree that defense counsel failed to object to the trial court’s imposition of the midterm. We do not read the record as restrictively. Defense counsel made a written and oral request for the trial court to exercise its discretion pursuant to Romero to strike the prior serious felony conviction and for the court to consider placing Astorga in CRC. Then, defense counsel requested that his client receive the mitigated term because the amount of contraband involved was small. Defense counsel’s argument raised the issue Astorga now brings on appeal. The prosecutor and the court were fairly informed that Astorga was seeking a mitigated sentence and his reason for doing so. The prosecutor had a full opportunity to respond to Astorga’s argument and the court had the opportunity to make a fully informed ruling. (See People v. Partida (2005) 37 Cal.4th 428, 435.)
Although defense counsel initially argued the wrong mitigated sentence, this was corrected soon after by the court and the parties.
If a question of whether a defendant has preserved a claim for appeal is close and difficult, we assume the claim is preserved and address the merits of the contention. (People v. Hernandez (2003) 30 Cal.4th 835, 863; People v. Champion (1995) 9 Cal.4th 879, 908, fn. 6 [overruled on another ground in People v. Combs (2004) 34 Cal.4th 812, 860].) The question of whether Astorga preserved this issue on appeal is not even a close one. His counsel sought a mitigated sentence. We hold that Astorga preserved the issue of the length of the trial court’s sentence for appellate review. Because defense counsel argued as much as he could for his client, Astorga has failed to meet his burden of proving his counsel’s representation fell below professional standards. We therefore reject Astorga’s assertion of ineffective assistance of trial counsel.
The defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel’s decision making is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions which are futile. (Id. at p. 390; also see People v. Mendoza (2000) 24 Cal.4th 130, 166.) Lodging an objection to the trial court’s imposition of the midterm sentence after arguing for a mitigated sentence moments earlier would have been a futile motion.
Abuse of Sentencing Discretion
Astorga argues the trial court improperly reasoned backward in selecting his sentence and failed to properly state its reasons for its sentencing choice.
In People v. Swanson (1983) 140 Cal.App.3d 571, 574, this court found that the trial judge made an ambiguous statement in sentencing the defendant. Because it was possible the statement indicated the court was reasoning backward based on a subjective belief of what constituted a fair sentence, we found error and remanded for resentencing. (Ibid.; see also People v. Fernandez (1990) 226 Cal.App.3d 669, 684.) More recent authorities have found that even if a judge has a subjective belief concerning the length of the sentence, such a belief is not improper so long as it is channeled by the guided discretion of the statutory sentencing criteria. (People v. Burbine (2003) 106 Cal.App.4th 1250, 1264; People v. Calderon (1993) 20 Cal.App.4th 82, 88.)
The trial court in the instant action was not reasoning backward to reach a sentence based on purely subjective criteria. In choosing Astorga’s sentence, the court rejected a commitment to CRC because of Astorga’s criminal record. The court initially set Astorga’s term at four years, doubled to eight years, which the court believed represented the mitigated term. The court noted Astorga had a relatively small amount of contraband and Astorga would be serving a longer sentence by operation of the three strikes law.
When the court and the parties realized the probation officer had already applied a double sentence to the sentencing triad in the probation report, the court stated the midterm was justified by the facts of Astorga’s case and his criminal record. The three-year midterm, doubled to six years, was actually less than the term the trial court initially considered. Although the court’s statement of reasons was not a model of clarity, the court was not applying ill-defined, subjective criteria. The court had already noted a mitigating factor not set forth in the probation report, the relatively small amount of contraband Astorga possessed. In choosing the midterm sentence, the court noted Astorga’s extensive criminal record. This is a valid sentencing factor (Cal. Rules of Court, rule 4.421(b)(2)). In imposing the midterm sentence, the court balanced a mitigating factor with an aggravating factor. In doing so, the court did not act arbitrarily or capriciously and did not abuse its broad sentencing discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
Astorga further argues the court erred in failing to state its reasons for its sentencing choice. The court must still state its reasons for a sentencing choice. (People v. Sandoval, supra, 41 Cal.4th at p. 847.) Astorga’s extensive criminal record was a valid basis for selecting a sentence, including an upper term sentence. This factor was in addition to Astorga’s prior serious felony conviction. A single aggravating factor would have justified an upper term sentence in this case. (People v. Black (2007) 41 Cal.4th 799, 813, 815.) The trial court did not err in selecting the midterm sentence in this case.
There were additional aggravating factors in appellant’s case available for the court to apply in imposing a midterm sentence, including his poor performance on probation and the fact that he was on probation when he committed this offense. Even if we found the trial court’s statement of reasons was insufficient and constituted error, the error would be harmless beyond a reasonable doubt. Here, there are multiple aggravating factors that would have justified an upper term sentence. The trial court instead selected the midterm. Given the other aggravating factors available to the trial court, any error in failing to fully articulate its reasons for its sentencing choice is harmless beyond a reasonable doubt. (See People v. Wilson (2008) 44 Cal.4th 758, 812.)
DISPOSITION
The judgment is affirmed.