Opinion
C096782
07-07-2023
THE PEOPLE, Plaintiff and Respondent, v. COLTEN RAY COONROD, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 20F5070, 20F1964.
BOULWARE EURIE, J.
On June 17, 2021, defendant Colten Ray Coonrod agreed to imposition of an aggregate five-year four-month suspended prison sentence, which included an upper term, in exchange for the reinstatement of his probation. Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567) went into effect on January 1, 2022, and altered the methodology for selecting an appropriate triad term. (Pen. Code, § 1170, subd. (b); Stats. 2021, ch. 731.) Defendant again violated his probation, and on July 13, 2022, the trial court lifted the suspension on defendant's prison sentence.
Undesignated statutory references are to the Penal Code.
Defendant appeals arguing: (1) the trial court's noncompliance with the changes brought about by Senate Bill 567 requires reversal so that the trial court may determine whether it may still impose an upper term in his case, and (2) his counsel was ineffective for not raising the issue at the July 13, 2022, sentencing hearing. On March 22, 2023, we sent a letter requesting the parties file supplemental briefing addressing certain procedural issues, including the failure of the trial court to advise defendant of his rights and take defendant's personal admission at the final formal probation violation hearing.
Having reviewed the briefs, we find the trial court's procedure did not violate due process. Further, defendant forfeited the court's noncompliance with Senate Bill 567 by not raising it below, and his ineffective assistance of counsel claim fails because he has not established that there was no rational basis for trial counsel's failure to object. Nonetheless, our review of the record has disclosed the trial court's failure to dismiss certain charges resolved via defendant's plea agreement. We will modify the judgment to reflect dismissal of these counts and will affirm that judgment as modified.
BACKGROUND
In case No. 20F1964 (the theft case), the People charged defendant with felonious unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 1). In case No. 20F5070 (the domestic violence case), the People charged defendant with assault with force likely to cause create bodily injury (§ 245, subd. (a)(4); count 1); criminal threats (§ 422; count 2); corporal injury to a cohabitant (§ 273.5 subd. (a); count 3); dissuading a witness by threat or force (§ 136.1, subd. (c)(1); count 4); false imprisonment by violence (§§ 236, 237; count 5); battery on a cohabitant (§ 243, subd. (e)(1); count 6); and removal, injury, destruction, or damage to a wireless device with the intent to prevent the summoning of assistance (§ 591.5; count 7).
On December 9, 2020, defendant resolved these cases by pleading no contest to count 1 in the theft case and pleading no contest to counts 2 and 3 in the domestic violence case. In exchange, defendant would receive formal probation, and the balance of the charges would be dismissed. The stipulated factual basis for his pleas were the sheriff and highway patrol reports. On January 20, 2021, the trial court sentenced defendant in accordance with the plea but neglected to formally dismiss the balance of the remaining charges in the domestic violence case.
Defendant's plea agreement also resolved two probation violation cases (with probation being revoked and terminated) and a traffic case (which was dismissed).
On February 18, 2021, probation filed its first petition to revoke defendant's probation alleging he failed to report to probation as directed following his release from custody. On May 5, 2021, probation filed a second petition to revoke defendant's probation alleging three more violations. The same day, defendant admitted three of the four then pending violations, and the matter was referred to probation for a supplemental report. On June 17, 2021, with defense counsel present, defendant accepted the trial court's offer to reinstate probation if defendant waived his custody credits and agreed to a suspended upper term aggregate prison sentence of five years four months. The trial court warned defendant, "This will be your last chance."
This was the upper term of four years for corporal injury on a spouse/cohabitant/parent of defendant's child, plus eight months for the criminal threats, plus eight months for driving or taking of a vehicle.
On May 2, 2022, probation filed its third petition to revoke defendant's probation alleging two violations of probation. On May 31, 2022, probation filed its fourth petition to revoke defendant's probation alleging two violations of probation. Finally, on July 13, 2022, probation filed its fifth petition to revoke probation alleging three more probation violations. At the probation violation hearing held the same day, defendant was present and represented by counsel. Defendant's attorney indicated the trial court had already sustained one violation of probation and that defendant intended to waive his rights to a hearing on the remaining violations, as well as sentencing.
The trial court then recounted the alleged violations and explained that defendant was not a good candidate for probation in light of his convictions for criminal threats and corporal injury, which showed he was dangerous. Defendant would not be referred to the addicted offender program because of the nature of those offenses. The trial court failed to advise defendant of the rights he would waive by virtue of his admission. The trial court also failed to obtain a personal admission to any of the alleged violations. Nonetheless, the trial court found defendant had "knowingly and intelligently given up his rights and he's aware of the consequences of his admission." The court lifted the suspension on defendant's prison sentence, and defendant did not object or request the court consider resentencing him in light of the passage of Senate Bill 567. Defendant timely appealed, and the trial court granted appellate counsel's request for a certificate of probable cause. Appellate briefing in this matter was completed on May 1, 2023.
DISCUSSION
I
Due Process
Our request for supplemental briefing asked the parties to address the trial court's failure at the July 13, 2022, hearing to advise defendant of his due process rights as outlined in People v. Vickers (1972) 8 Cal.3d 451, 457-458, as well as to obtain personal admissions from defendant for the pending violations of probation. Defendant asserts the trial court prejudicially erred in failing to advise him of these rights requiring reversal for resentencing. The People disagree, contending defendant's attorney waived his right to a formal probation violation hearing at the outset of the hearing and defendant's silence thereafter effectively adopted that waiver, thus complying with due process. We agree with the People.
"Under section 1203.2, the court is authorized to summarily revoke a defendant's probation' "if the interests of justice so require and the court . . . has reason to believe from the report of the probation officer or otherwise" that grounds for revocation exist. (§ 1203.2, subd. (a).) Such summary revocation gives the court jurisdiction over and physical custody of the defendant and is proper if the defendant is accorded a subsequent formal hearing in conformance with due process. [Citation.] [¶] Therefore, after the summary revocation, the defendant is entitled to formal proceedings for probation revocation. The purpose of the formal proceedings is not to revoke probation, as the revocation has occurred as a matter of law; rather, the purpose is to give the defendant an opportunity to require the prosecution to prove the alleged violation occurred and justifies revocation. [Citation.]' (People v. Clark (1996) 51 Cal.App.4th 575, 581[, disapproved on other grounds in People v. Mendez (1999) 19 Cal.4th 1084 (certificate of probable cause requirements should be strictly applied)].)" (People v. Leiva (2013) 56 Cal.4th 498, 504-505.)
In Vickers, the California Supreme Court determined the due process requirements guaranteed by the Fourteenth Amendment for parole revocation proceedings apply equally to a defendant facing revocation of probation. (People v. Vickers, supra, 8 Cal.3d at p. 458.) Accordingly, at the formal probation revocation proceedings a defendant is entitled to: (1) written notice of the asserted probation violations; (2) disclosure of the evidence against him or her; (3) an opportunity to appear in person and present witnesses and other documentary evidence; (4) a conditional right to confront and cross-examine witnesses; (5) a neutral factfinder; and (6) a written statement by the factfinder detailing the reasons for revoking probation, including the evidence relied upon. (Id. at pp. 457458.) Notwithstanding these requirements, Vickers recognized "the precise nature of the proceedings for such revocation need not be identical if they assure equivalent due process safeguards." (Id. at p. 458.)
While it may have been better practice for the trial court to advise defendant of his Vickers rights and take personal admissions from him, as the People point out, a defendant can waive a formal hearing and admit a probation violation through the conduct of the defendant's attorney and the defendant's own silent acquiescence therein. (People v. Dale (1973) 36 Cal.App.3d 191, 194-195; People v. Martin (1992) 3 Cal.App.4th 482, 486.) In Dale, the defendant argued that the trial court denied him due process of law by failing to specifically inform him of and take his personal waiver of the right to present evidence and confront witnesses. Dale concluded there was an effective waiver of a formal probation revocation hearing based on "conduct of counsel in submitting an alleged violation of probation upon the probation report" and defendant's acquiescence by his silence. (Dale, at p. 195.) Martin concluded the defendant waived the right to a formal probation revocation hearing "by filing a statement in mitigation which acknowledged that he would be sentenced" and by failing "to object at the sentencing hearing either to the sentencing procedure or to the grounds for revocation." (Martin, at p. 486.)
Here, defendant's attorney expressly informed the trial court of defendant's intention to waive his right to a formal probation revocation hearing, stating, "Mr. Coonrod understands that he has a right to a hearing as to the new petitions, and he would have a right to a sentencing hearing as well. However, it's his decision at this time to waive his right to set hearings and to proceed with the Court's indicated sentence of five years, four months." Defendant was present with counsel in the courtroom and did not object to his counsel's statement. Thereafter, the trial court accepted counsel's representation and determined that defendant had "knowingly and intelligently given up his rights and he's aware of the consequences of his admission." The court then lifted the suspension of defendant's previously imposed prison sentence, and defendant did not object.
We disagree with defendant that Dale is distinguishable merely because that case involved an admission supported by a probation report. The purpose of the formal probation revocation proceeding is to allow a defendant to force the People to prove the probation violation case (People v. Leiva, supra, 56 Cal.4th at pp. 504-505), and defendant's waiver of the right to a formal hearing fulfills that purpose (ibid.; see also People v. Clark, supra, 51 Cal.App.4th at pp. 581-583 [waiver of an evidentiary hearing]). Defense counsel's affirmative conduct and defendant's silent acquiescence support the court's finding of waiver in this instance. Accordingly, there was no due process violation.
II
Senate Bill 567
Effective January 1, 2022, pursuant to Senate Bill 567, when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the trial court must impose a term not exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term exceeding the middle term and the facts underlying those aggravating circumstances (1) have been stipulated to by the defendant, (2) have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial, or (3) relate to the defendant's prior convictions and are based on a certified record of conviction. (§ 1170, subd. (b)(1)-(3); Stats. 2021, ch. 731, Legis. Counsel's Digest.)
Here, defendant agreed to the imposition of an upper term, suspended sentence on June 17, 2021, in exchange for reinstatement of probation. On July 13, 2022, defendant was pending resentencing on one probation violation and admitted other violations of probation. In light of this, the trial court lifted the suspension on the complained-of sentence. This was over seven months after Senate Bill 567's effective date. (Stats. 2021, ch. 731, eff. Jan. 1, 2022.)
Defendant argues that because the trial court did not make an explicit finding that the factors in aggravation justify imposition of a sentence over the presumptive middle term, the trial court's sentence does not comply with the changes brought about by Senate Bill 567. However, because Senate Bill 567 was in effect at the time the trial court lifted the suspension, defendant's failure to object has forfeited this argument on appeal. (People v. Scott (1994) 9 Cal.4th 331, 351; People v. Flowers (2022) 81 Cal.App.5th 680, 683-684, review granted Oct. 12, 2022, S276237.)
Recognizing this forfeiture, defendant alternatively argues his counsel was ineffective for not raising the issue at the July 13, 2022, sentencing hearing. "[T]o establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel's performance was deficient and that the defendant suffered prejudice as a result of such deficient performance." (People v. Mickel (2016) 2 Cal.5th 181, 198; see Strickland v. Washington (1984) 466 U.S. 668, 687-692.) To demonstrate prejudice, a defendant must show "a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (Mickel, at p. 198.) We presume "that counsel's actions fall within the broad range of reasonableness, and [we] afford 'great deference to counsel's tactical decisions.'" (Ibid.)
As our Supreme Court has observed, "[C]ertain practical constraints make it more difficult to address ineffective assistance claims on direct appeal rather than in the context of a habeas corpus proceeding." (People v. Mickel, supra, 2 Cal.5th at p. 198.) This is because "[t]he record on appeal may not explain why counsel chose to act as he or she did. Under those circumstances, a reviewing court has no basis on which to determine whether counsel had a legitimate reason for making a particular decision, or whether counsel's actions or failure to take certain actions were objectively unreasonable." (Ibid.) We will reverse only "if there is affirmative evidence that counsel had '" 'no rational tactical purpose'"' for an act[] or omission." (Ibid.; see People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 ["' "[if] 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' "].) A defendant thus bears a difficult burden when asserting an ineffective assistance claim on direct appeal. (Mickel, at p. 198.)
Here, the record is silent as to defense counsel's reasons, if any, for failing to object to the imposition of an upper term sentence in light of Senate Bill 567. Defendant argues there was no reasonable tactical basis for counsel's failure to object and demand compliance with amended section 1170 subdivision (b)'s requirements. We disagree.
Here, we can discern at least one reasonable basis upon which trial counsel may have chosen not to object. (Burt v. Titlow (2013) 571 U.S. 12, 22 [under Strickland, "counsel should be 'strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment' "].) Although Senate Bill 567 applies retroactively to defendant's nonfinal judgment (People v. Esquivel (2021) 11 Cal.5th 671, 680 ["we conclude that legislation ameliorating punishment presumptively applies to suspended execution cases pending on appeal from an order causing a previously imposed sentence to take effect"]), he does not benefit from it because the trial court was without discretion to modify that sentence when it lifted the suspension on execution. (See Esquivel, at p. 679 [recognizing constraints on the court's ability to "modify suspended execution sentences"]; People v. Howard (1997) 16 Cal.4th 1081, 1095 ["if the court has actually imposed sentence, and the defendant has begun a probation term representing acceptance of that sentence, then the court has no authority, on revoking probation, to impose a lesser sentence at the precommitment stage"].) Under these circumstances, defendant has not shown his trial counsel's failure to object rendered ineffective assistance. (See People v. Price (1991) 1 Cal.4th 324, 387 [defense counsel does not render ineffective assistance by declining to make objections that counsel reasonably determines would be futile].)
Moreover, putting aside that the trial court did not have the power to modify the suspended sentence when lifting that suspension, defense counsel could have also reasonably determined that the trial court would not alter its decision to impose the upper term despite the ameliorative changes brought about by Senate Bill 567. Following defendant's first two violations of probation, the trial court selected an upper term sentence for defendant prior to suspending it, warning defendant that it would be his last chance. Thereafter, defendant again violated his probation, resulting in three more petitions to revoke his probation prior to the hearing on July 13, 2022. This indisputably established that defendant (having admitted to violations of probation from five separate petitions for revocation of probation) had performed unsatisfactorily on probation. (Cal. Rules of Court, rule 4.421(b)(5); People v. Osband (1996) 13 Cal.4th 622, 730 [only one factor in aggravation is required to impose an upper term sentence].) Accordingly, we find trial counsel could have rationally determined that objecting on the basis of Senate Bill 567 would have only prolonged the proceedings and not resulted in a sentence more favorable to defendant. This does not establish ineffective assistance. (People v. Price, supra, 1 Cal.4th at p. 387 [defense counsel does not render ineffective assistance by declining to make objections that counsel reasonably determines would be futile].)
The parties' briefs fail to acknowledge this distinction, which renders the split of authority reflected in People v. Mitchell (2022) 83 Cal.App.5th 1051, review granted December 14, 2022, S277314, and People v. Todd (2023) 88 Cal.App.5th 373, review granted April 26, 2023, S279154, inapplicable.
DISPOSITION
We modify the judgment to reflect the dismissal in the domestic violence case (case No. 20F5070) of count 1 (§ 245, subd. (a)(4)), count 4 (§ 136.1, subd. (c)(1)), count 5 (§§ 236, 237), count 6 (§ 243, subd. (e)(1)), and count 7 (§ 591.5) in accordance with the plea agreement. The trial court shall modify the January 20, 2021, minute order to reflect those dismissals. The judgment is affirmed as modified.
We concur: MAURO, Acting P. J., DUARTE, J.