Opinion
C081709
02-15-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBERT BURNS ARNOLD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15NCR10512)
Prior to denying probation and imposing the upper term, the trial court found defendant Robert Burns Arnold presumptively ineligible for probation based on his two prior Arizona felonies. On appeal, defendant first contends he was not presumptively ineligible, and in so concluding, the trial court abused its discretion and violated his right to due process. He further argues his trial counsel rendered ineffective assistance in failing to bring that issue to the trial court's attention. We conclude this challenge is forfeited and the record cannot support a finding of ineffective assistance of counsel.
Defendant also challenges the imposition of several fines. We agree and will strike the erroneous fines, remand with instructions, and otherwise affirm.
BACKGROUND
Defendant pled guilty to vehicle theft. In exchange, the prosecution agreed to recommend a 120-day jail term in lieu of prison time -- though the court would not be bound by that recommendation.
After the plea, but before sentencing, a probation report was prepared. The report disclosed two previously unknown Arizona felony convictions: a conviction for unlawful flight from a law enforcement vehicle and a conviction for property theft. The report stated defendant was presumptively ineligible for probation under Penal Code section 1203, subdivision (e)(4), which applies to "[a]ny person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony."
Undesignated statutory references are to the Penal Code. --------
The parties requested and received, a two-week continuance to "entertain that information contained in the report."
At least two weeks later, at sentencing, the court explained it had reviewed the probation report and intended to deny probation and impose the upper term. It added, "[h]e's statutorily presumptively ineligible for probation," no unusual circumstances are present, and "probation's not going to serve any useful purpose . . . . The Defendant has not sought to deal with his issues of addictions at any other prior court proceedings."
The prosecution responded that this is an "odd-duck" case. Nothing had shown up in defendant's history when the plea agreement was reached. But now -- after speaking with counsel, and in keeping with the original plea agreement -- the prosecution would recommend the low term of 16 months.
Defense counsel added that defendant had admitted guilt early on: "I would focus on the mitigation of early admission, your Honor."
The court then clarified that the plea agreement was based on the belief at the time that defendant had no prior convictions, save for a warrant in Arizona. It added that they were now aware of another warrant for a felony in Colusa County.
The court then imposed the three-year upper term. It noted defendant's Arizona felonies and added: "He's currently 35 years of age, but he's been basically using heroin from the time he was 28 . . . up until the time of his arrest. He's not sought any type of treatment . . . . And as I stated, under [section] 1203[subdivision](e)(4) he's presumptively ineligible for probation unless unusual circumstances are shown. I find no unusual circumstances."
The trial court also imposed a $6,224 "fine for the violation."
DISCUSSION
I
Defendant's Sentencing Challenge
On appeal, defendant first contends the trial court abused its discretion and violated his right to due process by sentencing him under the mistaken belief he was presumptively ineligible for probation based on his Arizona convictions. We conclude this challenge is forfeited, and the record cannot support a finding of ineffective assistance.
A
Defendant Has Forfeited His Challenge
"Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention." (People v. Scott (1994) 9 Cal.4th 331, 353.) Accordingly, forfeiture applies "to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices." (Ibid.)
Here, denying probation was within the trial court's discretion. And at least two weeks before sentencing, the parties received the probation report, indicating defendant's presumptive ineligibility based on his Arizona convictions. Defendant had ample opportunity to raise that issue with the trial court. By failing to do so, the issue is forfeited on appeal.
B
Defense Counsel Did Not Render Ineffective Assistance
Anticipating that conclusion, defendant contends his trial counsel rendered ineffective assistance in failing to object to the trial court's finding that he was presumptively ineligible for probation. He argues such failure cannot be explained as a reasonable choice where the record contains no evidence of presumptive ineligibility.
The People respond that while the elements of defendant's Arizona convictions would not constitute felonies in California, the court is not limited to considering the least adjudicated elements when determining whether an out-of-state felony would constitute a California felony. A court may, the People urge, also consider the specific facts and circumstances of the offense. Accordingly, defense counsel may have determined defendant's conduct in Arizona would have constituted felonies in California and opted not to raise it. We agree with the People.
"[T]o establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it 'fell below an objective standard of reasonableness . . . under prevailing professional norms.' " (People v. Ledesma (2006) 39 Cal.4th 641, 745-746.) "If the record 'sheds no light on why counsel acted or failed to act in the manner challenged,' an appellate claim of ineffective assistance of counsel must be rejected 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' " (Id. at p. 746.)
Here, the record is insufficient to determine why counsel failed to raise the issue with the trial court and also insufficient to conclude he was deficient. Preliminarily, there is case law to support the People's position that in determining whether an out-of-state offense would be punishable as a felony in California, the trial court may consider the defendant's underlying conduct. (See People v. Bacon (2010) 50 Cal.4th 1082, 1118 ["we may properly consider at least the uncontested facts and circumstances of the offense in the record, which here establish that the robbery and killing occurred during the course of a continuous transaction, and which therefore establish that this crime 'would be punishable' as first degree felony murder in California"]; People v. McGee (2006) 38 Cal.4th 682, 706 [When determining if out-of-state convictions are serious felonies under the three strikes law, "[i]f the enumeration of the elements of the offense does not resolve the issue, an examination of the record of the earlier criminal proceeding is required in order to ascertain whether that record reveals whether the conviction realistically may have been based on conduct that would not constitute a serious felony under California law"].)
Accordingly, here, defense counsel reasonably may have opted not to challenge the trial court's finding of probation ineligibility, concluding defendant's conduct would constitute a California felony (and concluding raising that conduct would not have advanced defendant's cause). The ineffective assistance challenge must therefore fail.
II
Defendant's Challenge To Several Fines
Defendant also challenges the imposition of several fines. He contends the restitution and parole revocation fines must be stricken because the trial court never imposed them. He also contends remand is required to allow the trial court to identify the statutory basis for a $6,224 fine. We agree with both contentions.
The abstract of judgment contains a $600 restitution fine and a $600 parole revocation fine. But the trial court never imposed those fines. We will therefore strike the restitution and revocation fines. (See People v. Zackery (2007) 147 Cal.App.4th 380, 387-388 [the abstract must accurately summarize the oral pronouncement, including all fines and fees]; People v. Tillman (2000) 22 Cal.4th 300, 303 [failure to object when a trial court does not impose a restitution and revocation fine waives a subsequent challenge].)
The trial court also imposed a $6,224 fine without providing a statutory basis. We will direct the trial court to provide a statutory basis for that fine. (See People v. High (2004) 119 Cal.App.4th 1192, 1201 [the trial court must "separately list, with the statutory basis, all fines, and penalties imposed"].)
DISPOSITION
The judgment is modified to strike the $600 restitution fine and the $600 parole revocation fine. We remand with directions to separately list, with the statutory basis, all fines, fees, and penalties imposed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Murray, J.