Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. Nos. CR055111, CR055693.
Jones, P.J.
Cory Bruce Adams appeals from a judgments entered in two separate criminal cases. He contends (1) the trial court violated Apprendi v. New Jersey (2000) 530 U.S. 466 and its progeny when it imposed an upper term sentence, and (2) he received ineffective assistance of counsel. We reject these arguments and affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Case Number CR055111
On October 6, 2005, near 10:30 a.m., a police officer saw appellant behind a shopping center leaning against a minivan that had expired registration tags and a broken rear window. Appellant appeared to be under the influence of a stimulant, and it was apparent he had an object beneath his shirt. A pat-down search revealed appellant had a “large” sheathed, fixed blade knife. A search of the van revealed three methamphetamine pipes, a billy club emblazoned with gang insignia, and stolen credit cards. During a subsequent search at the police department, appellant was found to have marijuana in his possession.
On October 11, 2005, a complaint was filed charging appellant with five counts: (1) unlawful possession of a dagger (alleged to be a violation of Pen. Code, § 12020, subd. (a)(1)), (2) unlawful possession of a billy (§ 12020, subd. (a)(1)), (3) receiving stolen property (§ 496, subd. (a)), (4) being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), and (5) unlawful possession of an object for smoking a controlled substance (Health & Saf. Code, § 11364).
Unless otherwise indicated, all further section references will be to the Penal Code.
On October 17, 2005, appellant pleaded guilty to the receiving stolen property charge, and the remaining counts were dismissed with a Harvey waiver.
People v. Harvey (1979) 25 Cal.3d 754.
On March 1, 2006, the trial court suspended the imposition of sentence and placed appellant on probation.
B. Case Number CR055693
After appellant had pleaded guilty to the receiving stolen property charge, but prior to being sentenced, appellant was arrested again. On November 8, 2005, near 3:30 p.m., security personnel at a Mervyn’s store in Eureka saw appellant take shoes and clothing without paying. When store personnel tried to stop appellant after he left the store, appellant resisted and pulled a knife. The store personnel wrestled appellant to the ground and disarmed him.
Based on these facts, on November 10, 2005, a complaint was filed charging appellant with three counts: (1) robbery (§§ 211, 212.5), (2) unlawful possession of a dagger (alleged to be a violation of § 12020, subd. (a)), and (3) assault with a deadly weapon (§ 245, subd. (a)).
On January 30, 2006, appellant pleaded guilty to the assault count. On August 28, 2006, the court suspended the imposition of sentence and placed appellant on probation.
C. Probation Violation
In September 2006, petitions were filed in both cases alleging appellant had violated his probation by failing to report as required and by failing to enter and complete a substance abuse program. After a contested revocation hearing, the court found the allegations to be true.
On November 20, 2006, the court declined to reinstate probation and sentenced appellant to the upper term of four years on his assault conviction, plus an additional consecutive sentence of eight months for receiving stolen property.
II. DISCUSSION
A. Whether the Court Erred When It Imposed the Upper Term Sentence
At the beginning of the sentencing hearing, the court announced its tentative decision to deny appellant probation and to sentence him to the upper term of four years on his assault conviction:
“Despite his young age, Mr. Adams has clearly demonstrated himself to not be an appropriate candidate for probation. He has failed miserably. He’s been given more than a reasonable opportunity at treatment programs. But it seems that he always has an excuse or a reason and then comes back and says, well, now I’m ready to do it. I’ve learned. And that’s what I want to do. His juvenile record even before that is abysmal. It appears as an adult he’s taken up right where he left off as a juvenile. He won’t go report to probation. He won’t do what they tell him. You know—he got a bed space in Casa Rafael after leaving the J Street house. He wouldn’t even take the initial steps to go. And then we have a crime committed, a serious crime committed while he’s awaiting sentencing in the other matter. That does not bode well for somebody being successful on probation.
“As to the terms in the case where he is on probation for the 245, I would tentatively sentence him to the aggravated term of four years in the Department of Corrections. Under rule [4.421] I would find (a)(1) is aggravating. The offense did involve a threat of great bodily harm. I recognize that to at least some extent that could be part and parcel of the charged offense. Under (b)(1), he is engaged in violent conduct which indicates a serious danger to society. [Subdivision] (b)(2) is particularly aggravating. His prior records as both an adult and sustained petitions as a juvenile are both numerous and of increasing seriousness. And under [subdivision] (b)(5), his prior performance on probation has certainly been unsatisfactory. I don’t find any mitigating circumstances tentatively.”
After hearing argument from counsel, the court adopted its tentative decision and sentenced appellant to the upper term, a four-year eight-month sentence.
Appellant argued in his opening brief that the trial court violated Apprendi v. New Jersey, supra, 530 U.S. 466 and its progeny when it sentenced him to the upper term because it did so based on facts that he neither admitted nor were found by a jury to be true. However, appellant concedes in his reply brief that the California Supreme Court has ruled an upper term sentence is permissible so long as it is supported by one valid factor. (People v. Black (2007) 41 Cal.4th 799, 816.) Appellant also concedes the court here cited one valid factor, that his prior convictions were of increasing seriousness, and that this court is obligated to conclude the trial court did not violate Apprendi when it imposed the upper term sentence.
While appellant concedes this court is obligated to conclude that the upper term sentence does not violate Apprendi, he is careful to preserve the issue by arguing that the California Supreme Court decided the issue incorrectly.
In light of this concession, we conclude the court did not err.
B. Whether Appellant Received Effective Assistance
The trial court stated five factors when imposing the upper term sentence: (1) the offense involved a threat of great bodily harm (Cal. Rules of Court, rule 4.421(a)(1) ), (2) appellant was engaged in violent conduct that indicates he is a serious danger to society (rule 4.421(b)(1)), (3) appellant’s prior convictions as an adult and sustained petitions as a juvenile were numerous (rule 4.421(b)(2)), (4) appellant’s prior convictions as an adult and sustained petitions as a juvenile were of increasing seriousness (rule 4.421(b)(2)), and (5) appellant’s prior performance on probation was unsatisfactory (rule 4.421(b)(5)).
All further rule references will be to the California Rules of Court.
Appellant now challenges four of those factors contending they are not supported by the record. Appellant admits that his trial counsel did not object to the factors in the court below, so he frames the issue on appeal as a claim of ineffective assistance of counsel.
A defendant who contends he received ineffective assistance has the burden of proving that (1) trial counsel’s performance was deficient in that it fell below an objective standard of reasonableness when measured by prevailing professional norms, and (2) there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) An appellant who alleges ineffective assistance on direct appeal bears an especially heavy burden of proof: “‘[I]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,’ the claim on appeal must be rejected. [Citations.]” (People v. Wilson (1992) 3 Cal.4th 926, 936, quoting People v. Pope (1979) 23 Cal.3d 412, 426; see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.)
We turn first to whether trial counsel should have objected to the factors appellant has identified because they are not supported by the record. The first is that the offense involved a threat of great bodily harm. (Rule 4.421(a)(1).) We conclude this factor is supported by circumstances of the underlying crime. Appellant took clothing from a Mervyn’s store without paying, and when he was confronted by store personnel, he pulled a knife and forcibly resisted. The store personnel were required to pry the knife from appellant’s hand and wrestle him to the ground. The court reasonably could conclude that someone could have been seriously hurt during the altercation and that appellant’s offense involved a threat of great bodily harm.
Appellant contends his pulling a knife cannot be used both to support the assault offense and to enhance the crime. He relies on rule 4.420(d) contending it stands for the proposition that “[a] fact used to establish an element of a crime may not also be used to impose a greater term.” Appellant misquotes the rule upon which he relies. In fact the rule states, “[a] fact that is an element of the crime may not be used to impose the upper term.” In any event, we are not convinced the court violated rule 4.420(d) here. Appellant was charged with a single count of assault against one of the men who tried to detain him. In fact, the record shows appellant pulled a knife on three men, and that he resisted to such an extent that the men were forced to wrestle him to the ground and disarm him. Since there was ample evidence of potential serious harm in addition to the facts that supported the charged offense, we conclude the court did not err.
The second factor cited by the court was that appellant engaged in violent conduct that indicates he is a serious danger to society. (Rule 4.421(b)(1).) Again, we conclude the factor is supported by circumstances of the underlying crime. The fact that appellant pulled a knife on three men who tried to detain him fully supports the court’s conclusion that appellant engaged in conduct that was both violent, and that indicated he was a serious danger to society.
In arguing the trial court erred, appellant relies on the same argument he advanced with respect to the first factor; i.e., that his act of pulling a knife cannot be used to support the charged offense and to enhance the sentence. We reject this argument for the same reasons we reject appellant’s first argument: Appellant has misstated the rule upon which he relies, and in any event, the circumstances of the crime were broader and more dangerous than the facts necessary to support the charged crime.
Another factor cited by the court was that appellant’s prior convictions as an adult and sustained petitions as a juvenile were of increasing seriousness. (Rule 4.421(b)(2).) Appellant concedes this factor is both valid and supported by the record.
A fourth factor cited by the court was that appellant’s prior performance on probation was unsatisfactory. (Rule 4.421(b)(5).) This finding is supported by the probation report that shows that after appellant was adjudicated a ward of the court, numerous Welfare and Institutions Code section 777 petitions were filed and sustained based on later violations. As appellant concedes, our Supreme Court has characterized proceedings on Welfare and Institutions Code section 777 petitions to be the juvenile equivalent to a probation violation hearing. (John L. v. Superior Court (2004) 33 Cal.4th 158, 165.)
Having concluded that four of the five factors cited by the court when imposing the upper term were valid, we need not consider appellant’s arguments with respect to the remaining factor; i.e., whether appellant’s prior convictions as an adult and sustained petitions as a juvenile were numerous. (Rule 4.421(b)(2).) We conclude it is not reasonably probable appellant would have achieved a more favorable result even if the court could not validly rely on that factor. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)
III. DISPOSITION
The judgment is affirmed.
We concur: Simons, J., Gemello, J.