Opinion
F073882
07-10-2017
THE PEOPLE, Plaintiff and Respondent, v. ETHEN JAMES CARRELL, Defendant and Appellant.
James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CM4652 )
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge. James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Levy, Acting P.J., Gomes, J. and Peña, J.
-ooOoo-
Ethen James Carrell appeals from the sentence imposed after he admitted he violated the terms of his probation. Appellate counsel failed to identify any arguable issue in the case. Carrell asserts he would not have admitted he violated his probation had he known he was statutorily ineligible for probation. We reject any claim based on Carrell's assertion and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
The complaint charged Carrell with willful harm or injury to a child (Pen. Code, § 273a, subd. (a)) and misdemeanor battery on the child's father, J.T. (§ 242). The first count charged as enhancements that Carrell had served a prior prison term within the meaning of section 667.5, subdivision (b), and had a prior conviction that constituted a strike within the meaning of section 667.5, subdivisions (b)-(i).
All statutory references are to the Penal Code. --------
Carrell entered into a plea agreement wherein he agreed to plead guilty (or no contest) to willfully harming a child. In exchange, Carrell would be placed on probation with no additional jail time. A condition of probation was that Carrell was to attend an anger management program. The trial court explained to Carrell his constitutional rights, and obtained a waiver of those rights. The trial court also explained to Carrell the consequences of his plea. Carrell then pled no contest to the charge. The remaining charge and enhancements were dismissed. A criminal protective order was also issued as part of the plea agreement which included an order prohibiting Carrell from coming within 100 yards of J.T.
At the October 26, 2015 sentencing hearing, the trial court placed Carrell on probation for three years on the terms to which the parties agreed. At the hearing the issue of the protective order was addressed. The trial court informed Carrell that he would go to prison if he came within 100 yards of J.T. Carrell said he understood the restriction.
On November 5, 2015, only 10 days after the sentencing hearing, Carrell violated the protective order by being within 100 yards of J.T. On March 21, 2016, the trial court revoked Carrell's probation in this case based on the violation of the protective order.
At the next court hearing, Carrell admitted he violated his probation. Before accepting Carrell's admission, the trial court informed Carrell of the consequences of his plea and obtained a waiver of his constitutional rights.
The probation report found Carrell unsuitable for a grant of probation and recommended imposition of a prison sentence. The report noted Carrell (1) had failed to enroll in an anger management program, (2) appeared to pose a danger to society because he resorted to violence to resolve disputes, (3) had an extensive criminal history, and (4) had failed to make any attempt to pay the fines and fees imposed despite being employed while on probation. The report further noted that if the trial court chose to place Carrell on probation again, a longer anger management course would be recommended.
At the sentencing hearing, the trial court stated Carrell was statutorily ineligible for probation because of his criminal record (two prior felony convictions, one prior strike conviction) and had been fortunate to have been placed on probation as part of the plea agreement. It also found Carrell knowingly violated the protective order, posed a danger to society, and had a lengthy criminal record. Accordingly, the trial court refused to reinstate Carrell on probation, and sentenced him to the midterm sentence of four years in prison. When Carrell asked for the low term of two years because he did not contact J.T., the trial court explained that it was sentencing Carrell for the crime he committed, not for the violation of probation.
DISCUSSION
Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, indicating that after reviewing the record he could not identify any arguable issues.
After reviewing the record, we agree there are no arguable issues in this case. Carrell initially obtained a very favorable resolution of the case which resulted in his being placed on probation. When he was sentenced he was informed that if he came within 100 yards of J.T. he would be sent to prison. Within 10 days of sentencing, Carrell violated the protective order by coming within 100 yards of J.T. It appears from the record that Carrell decided to return to the neighborhood in which J.T. lived, and then sat on the sidewalk curb in front of the house in which J.T. lived. It also appears undisputed that Carrell knew J.T. lived in the house, and knew or should have known J.T. was at home at the time. The probation report sets forth Carrell's long criminal history, and explained why he is a danger to society. The trial court acted well within its discretion in denying him probation and sentencing him to the midterm sentence for his conviction.
By letter dated September 22, 2016, we invited Carrell to inform this court of any issues he wished us to address. Carrell responded to our letter and argued he was improperly induced to admit the violation of probation because no one informed him he was ineligible for probation.
Carrell's argument is premised on the assertion that the only reason probation was not reinstated is because he was statutorily ineligible for probation. As we explain below, this premise is wrong. The record demonstrates the trial court chose not to reinstate probation because of Carrell's behavior, the circumstances of the offense, and his long criminal history.
There is no reference in the reporter's transcript from the violation of probation admission hearing about Carrell's eligibility for probation. The trial court informed Carrell of the range of sentences to which he was subject, and told him it could reinstate him on probation. It also advised Carrell that if he wanted the court to consider any letters of recommendation he would have to submit those to the probation department. There was no suggestion about the possible sentence which would be imposed.
We begin with two observations. First, the trial court acted well within its discretion when it sentenced Carrell to prison. While it is true Carrell is statutorily ineligible for probation pursuant to section 1203, subdivision (e)(4) and 1203.06, subdivisions (a)(1)(B) and (a)(1)(E), the trial court could have reinstated Carrell's probation in the same way it had placed him on probation pursuant to the original plea agreement. The record is clear that the trial court denied Carrell probation because it found him unsuitable for probation, a conclusion not only well within its discretion, but one that is almost compelled by the facts and circumstances of this case. Simply stated, Carrell was given an opportunity to demonstrate he could control his behavior when he was placed on probation. Instead of taking advantage of this opportunity, Carrell ignored the terms of the protective order, which were also terms of probation, by willfully placing himself within 100 yards of J.T..
Second, when Carrell entered the initial plea agreement he was statutorily ineligible for probation. Nonetheless, the trial court placed him on probation pursuant to the terms of the plea agreement. Carrell was warned, however, that if he violated the protective order he would be sent to prison. When Carrell admitted he violated the terms of his probation, he remained statutorily ineligible for a grant of probation. Nonetheless, the trial court could have reinstated probation just as it had originally placed him on probation. However, consistent with the warning given Carrell, the trial court chose to sentence him to prison.
Carrell's argument that he was not advised that he was statutorily ineligible for prison could best be described as a claim of ineffective assistance of counsel, i.e., defense counsel was ineffective because he failed to inform Carrell he was statutorily ineligible for probation. A claim of ineffective assistance of counsel requires a defendant to show (1) defense counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation prejudiced the defendant. (People v. Dennis (1998) 17 Cal.4th 468, 540-541.) When the claim is that defense counsel's deficient performance resulted in the defendant pleading guilty, to establish prejudice the defendant must show that there is a reasonable probability that, but for counsel's incompetence, the defendant would not have pled guilty and would have insisted on proceeding to trial. (In re Alvernaz (1992) 2 Cal.4th 924, 933-934.)
Carrell cannot establish either prong of a claim of ineffective assistance of counsel. As to the first prong, defense counsel's representation of Carrell did not fall below an objective standard of reasonableness. Defense counsel negotiated a very favorable plea agreement which resulted in Carrell being placed on probation despite the fact he was statutorily ineligible for probation.
When Carrell violated his probation, defense counsel had no reason to believe the trial court would refuse to reinstate probation because Carrell was statutorily ineligible for probation. Moreover, the record reflects the trial court did not rely on Carrell's statutory ineligibility to deny reinstatement of probation. Instead, it relied on Carrell's actions, and failure to act. Because the trial court could have reinstated Carrell's probation despite his statutory ineligibility, as it did when it initially placed Carrell on probation, defense counsel was not ineffective for failing to advise Carrell of his statutory ineligibility.
Nor can Carrell establish prejudice. We acknowledge Carrell's assertion that he would not have admitted he violated his probation had he known he was statutorily ineligible for probation, despite the overwhelming evidence that he violated the protective order. However, what Carrell is actually stating is that had he known he would be sentenced to prison, he would not have admitted he violated his probation. And it is clear from Carrell's statements in the record and in his letter brief that he expected to have probation reinstated, despite the trial court's warning that a violation of the protective order would result in a prison sentence.
However, had the issue come up defense counsel would undoubtedly have told Carrell the trial court might reinstate probation despite the statutory prohibition, as it had done when it initially placed him on probation. And defense counsel would have been correct because the trial court retained the option of reinstating probation. Therefore, logically it appears Carrell would have entered the plea regardless of whether he knew he was statutorily ineligible for probation.
We also note that Carrell suggests he had a defense to the violation of probation because he was told by a police officer that he could return to the neighborhood in which J.T. lived because that was the neighborhood in which Carrell grew up. However, there is no evidence the police officer told Carrell he could violate the terms of the criminal protective order, and we doubt any such evidence exists.
DISPOSITION
The judgment is affirmed.