Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
City & County of San Francisco Super. Ct. No. 201617
Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant Edwin Camas appeals alleging errors in his sentencing. We affirm.
Facts and Procedural History
The facts are undisputed. Defendant, a convicted felon, was arrested in a bar from which he had been banned by a restraining order. At the time, he was in possession of a firearm and ammunition. At trial, before Judge Meeks, defendant was convicted, as charged, of felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)—Count 1), felon in possession of a concealed firearm (§ 12025, subd. (a)(2)—Count 2), felon in possession of ammunition (§ 12316, subd. (b)(1)—Count 3), and misdemeanor violation of a restraining order (§ 166, subd. (a)(4)—Count 4). Judge Meeks also found defendant in violation of his probation in a separate matter based upon the facts of the new case.
All further statutory references are to the Penal Code, unless otherwise indicated.
No appeal was taken from the judgment in the probation matter, San Francisco Superior Court case #2231152, in which defendant was on probation for violating Health and Safety Code section 11352.
Because Judge Meeks was not available at the time of sentencing, Judge Tsenin sentenced defendant to the aggravated term of three years in prison for Count 1 and, pursuant to section 654, stayed the midterms for Counts 2 and 3 and one month in jail for Count 4. Judge Tsenin also sentenced defendant to the mitigated term of three years in prison on the probation matter, concurrent with the three-year term for the new case.
The appellate record is somewhat confusing as to Counts 2-4. Originally, Judge Tsenin simply stayed sentence on all three counts. The minute order reflects that the stay was pursuant to section 654. Six days later, in an effort to clarify the length of the stayed sentences, Judge Tsenin stated the midterms as to Counts 2 and 3, and one month as to Count 4. The minute order from the second date indicates, paradoxically, that the sentences for these counts are both stayed pursuant to section 654 and concurrent. Additionally, the minute order shows the sentence for Count 4 to be four months in jail.
On appeal, defendant contends Judge Tsenin abused her discretion in selecting the aggravated term of three years for Count 1 and that he received ineffective assistance of counsel at sentencing. In order to address his contentions, it is important to set forth the relevant comments of both judges on the subject of sentencing.
Judge Meeks
After the jury returned the guilty verdicts, Judge Meeks took up the question of the probation violation and, specifically, whether defendant wished to present any evidence on that subject before the court made its determination. The judge was also concerned as to whether defendant would insist on his right to a speedy sentencing, given that the judge was not going to be available before the statutory deadline:
Defendant ultimately waived this right. The parties obviously contemplated that Judge Meeks would be available for the sentencing given the time waiver. However, for health reasons, the judge was ultimately not available.
“[DEFENSE COUNSEL]: You have to rule on the violation. [¶] THE COURT: Yeah, I was going to put that over until Monday unless you’re willing—because he’s entitled to present evidence on the probation matter unless you want to deal with that this afternoon. [¶] What I indicated to you both, I intend to keep pretty much the outline that I talked to you about regarding the revocation and this one because we have the enhancements too. . . . I don’t want to put too much on the record, but I was going to give you whatever thing I can do, but you want to do that Monday, or you want to go ahead . . . . [B]ut I already told you what I was going to do basically, give him the– [¶] [DEFENSE COUNSEL]: Three years. [¶] THE COURT: Yeah, is that the midterm? [¶] [DEFENSE COUNSEL]: That’s the low on the probation case, but that’s three, four, or five, three years you talked about. [¶] . . . [¶] [PROSECUTOR]: The gun is 1623. [¶] . . . . [¶] THE COURT: You know, that’s just the way I see it right now. You know, I was going to give him three plus run the other concurrent and not do the enhancement. I think I can do that . . . strike the enhancements over [the prosecutor’s] objection, strenuous objection, but I can’t commit any other judge if he wants to have him done within the time period because it has to be sent over for presentence report. [¶] [DEFENSE COUNSEL]: Can I talk to him? Maybe we can do both the violation and the sentencing at the same time when you get back. [¶] THE COURT: I’m going to go ahead and do the violation because I want to make the finding but put it over for sentencing because I have to send it out for supplemental report on that, but I want you to make notes on that, what my feelings are that I would give him the three and run the other one concurrent and strike the enhancements, but it would be over the strenuous objection of [the prosecutor]. [¶] . . . [¶] THE COURT: I’ve made certain indications to [defense counsel], and I don’t want to have─ [¶] [DEFENSE COUNSEL]: We want you. [¶] THE COURT: Some other judge may not follow that. See, if I tell you that’s what I’m going to do, unless something unusual comes up that I can set it aside, I don’t want to have him believing one thing and some other judge does something else. And I’d like for . . . you to be there because it’s going to be three years anyway . . . if he wants to waive time. [¶] . . .[¶] [DEFENSE COUNSEL]: We’re going to submit the probation violation. [¶] THE COURT: All right. He’s going to waive his right. Mr. Camas, you give up your right to present any evidence in mitigation on that matter personally? [¶] [DEFENSE COUNSEL]: Given these discussions on the record, he’s going to get the mitigated term. [¶] THE COURT: The three years. [¶] [DEFENSE COUNSEL]: Right. [¶] THE COURT: All right. But as long as he understands he has a right to present evidence in his own defense on that. That was a jury on the other matter. This is a court hearing on the motion to revoke.”
It is not clear to what enhancements the court was referring. Presumably, these were enhancements in the probation matter. In the case before us, no enhancements were charged or proven.
Defendant waived his right to present any evidence on the probation matter. The court found him in violation. Defendant waived time for sentencing.
Judge Tsenin
“THE COURT: . . . . Counsel it’s my understanding that you have some kind of agreement as to what Judge Meeks would have done in my place, right? [¶] [DEFENSE COUNSEL]: Yes, Your Honor. We believe that he was going to, and he told us that he was going to sentence Mr. Camas to three years in prison and that was going to be calculated by giving Mr. Camas the mitigated term on his 11352 probation case, number 2231152. [¶] And he was going to give Mr. Camas three years the aggravated term on Count 1 of the new case, the gun case, that he was convicted at trial on. . . . [¶] . . . . [¶] [PROSECUTOR]: Right. And he didn’t actually specify he was going to sentence him on Count 1. He was convicted on all counts. [¶] THE COURT: All right. Is there a count that I can give him three years without having to aggravate? [¶] [PROSECUTOR]: No. They’re all 16, 2 or 3. [¶] THE COURT: And I guess an aggravating term would be that he was already on probation? [¶] [PROSECUTOR]: Correct. And this case involved a gun. [¶] . . . .[¶] THE COURT: And all right. First of all counsel do you in view of the fact that Judge Meeks is having surgery and last heard—that he’s retired—he’s having surgery, he’s in Florida, and we don’t know when he will be back in this building. Again, do you stipulate that it’s okay for me to sentence Mr. Camas along those terms? [¶] [DEFENSE COUNSEL]: Your Honor, we stipulate this: You can sentence him and we stipulate that Judge Meeks told us what he was going to do and that he was going to sentence him as described. But Mr. Camas wants to reserve his appellate rights so. [¶] THE COURT: Oh, yes. [¶] [DEFENSE COUNSEL]: We’re not agreeing to the sentence because he doesn’t want to─ [¶] THE COURT: Right. No. [¶] [DEFENSE COUNSEL]: He doesn’t want to waive his appellate rights. [¶] THE COURT: All I’m basically saying is if I sentence Mr. Camas to this sentence, you have the right to be sentenced by Judge Meeks. Do you waive that right and do you allow me to sentence you without agreeing that this is a just or good or deserved sentence? [¶] THE DEFENDANT: Yes.”
Defense counsel then objected to the aggravated term in the current case, citing the fact there was no violence involved, that defendant had no history of violence or other significant criminal history, and that the gun was not loaded. The prosecutor argued in favor of the aggravated term, citing the fact that defendant was in violation of a restraining order, that he was on probation at the time, and that the gun was concealed. Judge Tsenin then sentenced defendant to the mitigated term of three years in prison on the probation matter and a concurrent three-year term on the new case: “THE COURT: Concurrent to the three years that I’m going to sentence you in case number 2311106 on Count 1 of that charge. And that’s also three years in State Prison, which is the aggravated term. And the aggravation is that you were on probation at the time and that you did possess a gun and any other reason. [¶] [PROSECUTOR]: It was [a] concealed weapon. [¶] THE COURT: It was concealed. [¶] [DEFENSE COUNSEL]: We’re objecting to that term. [¶] [PROSECUTOR] Well, he was convicted of a 12025 which is concealed weapon. [¶] THE COURT: Count 2, Count 3, and Count 4, the sentence on those counts are stayed.”
This is the number assigned to the case before us at the filing of the complaint. Following the preliminary hearing and the filing of a felony information, the case received the number, 201617, which we reference in the caption above.
Analysis
Defendant contends he received ineffective assistance when his trial counsel misrepresented to Judge Tsenin that Judge Meeks had decided to sentence him to the aggravated term of three years. Specifically, defendant contends that, once the prosecutor clarified for Judge Tsenin that Judge Meeks had not made such a decision, defense counsel was ineffective for not agreeing with the prosecutor.
First, Judge Meeks’ intention to sentence defendant to an aggravated term of three years in the new case was abundantly clear, as was his intention to sentence him concurrently to a three-year low term in the probation matter. Both counsel had a duty to represent that accurately to Judge Tsenin, and both fulfilled that duty. Secondly, defendant focuses on a particular statement of the prosecutor: “And he didn’t actually specify he was going to sentence him on Count 1. He was convicted on all counts.” Defendant contends the prosecutor was informing Judge Tsenin that Judge Meeks did not specify the length of the term he was inclined to impose. In actuality, it is clear, from the context of the prosecutor’s comments, that she was telling Judge Tsenin that Judge Meeks had not decided on which count he would impose the three-year sentence. Each of the three felony convictions carried the same maximum term of three years. We disagree with defendant’s characterization of the record and, consequently, find no deficiency in the conduct of trial counsel.
Defendant also contends Judge Tsenin abused her discretion in two respects when selecting the aggravated term of three years. First, he contends she relied on defense counsel’s misstatement of Judge Meeks’ indicated sentence. As outlined above, defendant mischaracterizes the record in this regard. Secondly, defendant contends Judge Tsenin ignored various mitigating factors. We disagree.
Defendant notes, in passing, that the probation report was incomplete in that “there was no mention of the alleged aggravating factors, and the probation officer incorrectly found that there were no circumstances in mitigation.” No objection to the contents of the probation report was raised in the trial court and is, therefore, waived. (People v. Evans (1983) 141 Cal.App.3d 1019, 1021.) Furthermore, the absence of a list of aggravating factors in the probation report could hardly redound to defendant’s detriment. No mitigating factors were listed. However, trial counsel argued several to the court: “. . . there was no violence in that case. The gun that was found wasn’t used, it wasn’t loaded, and . . . Mr. Camas doesn’t have a history of violence.” The only mitigating factor cited by defendant on appeal that was not argued by trial counsel was that defendant was “extremely intoxicated at the time of the offense.” Defendant cites People v. Simpson (1979) 90 Cal.App.3d 919, 921, for the proposition that his intoxication was a mitigating factor. The court in Simpson discussed defendant’s alcoholism, not simply his intoxication. Whether and under what circumstances alcoholism may be considered a mitigating or an aggravating factor is the subject of dispute. (See People v. Reyes (1987) 195 Cal.App.3d 957, 964, disapproving Simpson.) Here, we have no evidence defendant is an alcoholic. We have only the arresting officer’s testimony that he appeared to be intoxicated, which was not, under the circumstances, a mitigating factor.
The arresting officer testified: defendant appeared to be under the influence of alcohol; his eyes were bloodshot; he was staggering; and his breath smelled of alcohol.
The sentencing court has broad discretion in weighing the various sentencing factors. (People v. Evans, supra, 141 Cal.App.3d at p. 1022.) Here, there was no abuse of discretion. As the court noted, defendant was on probation at the time of the new offenses and the weapon was concealed. These were aggravating factors that did not otherwise augment his sentence. They amply justify the imposition of the aggravated term. We find no error and affirm.
The aggravated term was imposed for Count 1, felon in possession of a firearm. Defendant received a concurrent midterm for Count 2, felon in possession of a concealed firearm.
We concur: JONES, P. J., NEEDHAM, J.