Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR229797
Richman, J.
Defendant Anthony Milar Copeland appeals from the judgment of conviction entered after the trial court revoked his grant of probation and sentenced him to state prison.
On May 23, 2006, defendant stood charged with seven felonies (four counts of second degree burglary, one count each of grand theft, forgery, and being an accessory), one misdemeanor, and four prior conviction enhancement allegations. On that day, defendant entered into a negotiated disposition with the prosecution under which he agreed to enter a plea of no contest to the accessory charge, in exchange for dismissal of all other charges and enhancements—with waivers pursuant to People v. Harvey (1979) 25 Cal.3d 754—and an understanding that there would be “no initial state prison” sentence. On June 27, 2006, the court suspended imposition of sentence and admitted defendant to three years’ probation upon specified conditions, one of which was that defendant serve 180 days in the county jail.
Two months later, defendant admitted that he violated the conditions of his probation. The court reinstated his probation after adding 90 additional days in county jail, but the court warned defendant, “any violations of probation, you’re going to prison.”
In February 2008, defendant admitted a second violation of the conditions of his probation. Notwithstanding its prior warning, the court reinstated him to probation on the same conditions.
In June 2008, defendant was charged with a crime, and his probation was summarily revoked. However, the criminal charge was dropped, and defendant’s probation was reinstated on the same conditions.
In January 2009, defendant admitted yet another violation. The court opened the hearing on February 26, 2009, by stating: “My feeling is that... Mr. Copeland has been given chance after chance after chance and continues to use drugs, fourth drug-related violation regarding this case. With his prior record, I would disagree with the midterm [recommended by the probation officer]. The appropriate sentence would be the high term in the Department of Corrections.”
The prosecutor’s opinion was that “I understand... that he’s been doing very poorly on probation, but I’m just not sure that it’s a high term case. If he wants to have this chance at Delancey Street, I think the high term should be imposed and suspended over him. But if the court is just going to sentence him out, I think a midterm sentence is appropriate.”
Defendant’s counsel told the court that defendant “at this juncture... does not want to participate in the Delancey Street program,” or be committed to the California Rehabilitation Center. Although conceding that defendant “has four violations of probation,” counsel asked that defendant be admitted to probation one more time.
After hearing from defendant, the court then stated: “Mr. Copeland, you’ve been on felony probation. You’ve been to the Department of Corrections. You understand all of this, and here you have this probation that the court keeps reinstating you, reinstating you, trying to solve your problem. We can’t do it. You can’t do it. The only other alternative that would appear to be viable would be something like Delancey Street, if you wanted to waive all credits and go. But the odds of you completing that are not very good, so you would end up in prison anyhow. CRC they have that for treatment.... That’s been refused, so the only alternative for the court now, I think, is this, for violation of Penal Code section 32 that you were convicted on June 27..., further probation will be denied. For that violation, you will be sentenced to the Department of Corrections and Rehabilitation for the high term of three years. The court selects the high term primarily because of the nature of this offense being involved with others and also your extensive criminal record and the fact that we continue to put you on probation and you continue to violate. So I believe in my discretion that the high term is appropriate.”
All of defendant’s contentions on this timely appeal from the judgment are based on the single word “fourth” used by the court, and his trial counsel, to describe the number of defendant’s probation violations. It is the foundation of his contentions that the trial court abused its discretion in declining to admit him yet again to probation, and in sentencing him to the aggravated term.
The probation officer also counted four revocations.
It can be argued that defendant has seized upon an isolated comment that might be considered a secondary remark which did not recur and was not repeated when sentence was formally imposed. The word thus might be disregarded as immaterial. (See, e.g., People v. Lichens (1963) 59 Cal.2d 587, 589-590; People v. Cartier (1960) 54 Cal.2d 300, 312-313; In re Ernesto H. (2004) 125 Cal.App.4th 298, 315.)
In any event, in the most literal sense, defendant did have his probation revoked four times. Granted, the June 2008 revocation was a summary procedure that suspended, rather than formally terminated, his actual status as a probationer, and did not reach the stage of “a final resolution of contested facts” constituting the violation. (See People v. Vickers (1972) 8 Cal.3d 451, 457-458; see People v. Tapia (2001) 91 Cal.App.4th 738, 741; People v. Pipitone (1984) 152 Cal.App.3d 1112, 1116-1117.) Nevertheless, strictly speaking, there had been four revocations, so the trial court was not speaking inaccurately.
The grant or denial of probation is vested in the trial court’s discretion, and the defendant bears a heavy burden in contending that there was an abuse of that discretion. When reviewing a trial court’s decision, an appellate court does not substitute its judgment for that of the trial court. The reviewing court determines only whether the trial court’s decision was arbitrary, capricious, or exceeded the bounds of reason in light of all relevant circumstances. (E.g., People v. Edwards (1976) 18 Cal.3d 796, 807; People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.) As for the decision to revoke a grant of probation, where just a preponderance of the evidence is needed, “ ‘... only in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of... revoking probation.’ ” (People v. Rodriguez (1990) 51 Cal.3d 437, 443, quoting People v. Lippner (1933) 219 Cal. 395, 400; see In re Coughlin (1976) 16 Cal.3d 52, 56.)
According to these stringent criteria, defendant cannot establish that the trial court’s decisions to revoke his probation, and not give him a fourth try at probation, constituted abuses of discretion. To put it charitably, defendant’s performance on probation had been poor. Again, and again, and again, he had failed at leading a law abiding life. The court’s threat of a return to prison failed to keep him on the straight and narrow. Defendant refused even to try two residential programs to overcome his deep seated and long standing substance abuse problem. The probation officer’s report details defendant’s long standing inability to complete probation—and parole when he was released from state prison—going back to 1993. Against this background, we cannot condemn the trial court for calling a halt to the probation experiment.
Two of the four prior felony enhancement allegations dismissed by the plea bargain concerned drug-related convictions suffered by defendant in 1994 and 1995.
Also to be evaluated against the abuse of discretion standard is the trial court’s decision to impose the aggravated term. (E.g., Cal. Rules of Court, rule 4.420(b); People v. Downey (2000) 82 Cal.App.4th 899, 909; People v. Laws (1981) 120 Cal.App.3d 1022, 1038.) The same reasoning that supports the revocation and denial of probation establishes that defendant’s failures on probation support the one factor in aggravation necessary for imposition of an upper term. (Cal. Rules of Court, rule 4.421(b)(5); People v. Osband (1996) 13 Cal.4th 622, 730.)
Next is defendant’s contention the other reason cited as a factor in aggravation—“the nature of this offense being involved with others”—constituted an impermissible dual use of facts forbidden by California Rules of Court, rule 4.420(d) “because accessory after the fact necessarily involves others,” “others” being interpreted by defendant to mean other persons. But the trial court’s statement is also linguistically susceptible to the common sense construction that “others” is a reference not to persons, but to “other” offenses. In this connection we note that all of the dismissed offenses with which defendant was charged were all alleged to have occurred on the same date, which obviously suggests a single crime spree where the crimes would naturally be linked. The probation officer’s first report, which is the only source we have for the details of the alleged crimes, provides substantiation: “According to Vacaville Police Department’s report number 05-00449, on 1/15/06 the co-defendants and the defendant went to three gas stations,... a McDonald’s, Safeway, Target, and Wal-Mart, using a stolen ATM card to illegally obtain goods and services at the various locations.” Reference to the dismissed counts was clearly within the contemplation of the Harvey waiver agreed to by defendant. In addition, even if defendant was correct on this point, it would still leave unimpaired the other factor in aggravation cited by the trial court, which, as previously noted, would by itself be sufficient to sustain imposition of the upper term. (People v. Osband, supra, 13 Cal.4th 622, 730.)
On the premise that there were “sentencing errors,” defendant argues his trial counsel was constitutionally ineffective for failing to object to them. As shown by the preceding discussion, the predicate for defendant’s argument is not shown. It is therefore appropriate to invoke the principle that ineffective assistance of counsel is not made out when trial counsel does not raise futile or pointless objections. (E.g., People v. Anderson (2001) 25 Cal.4th 543, 587; People v. Cudjo (1993) 6 Cal.4th 585, 623; People v. Jackson (1989) 49 Cal.3d 1170, 1189.) Moreover, even had such an objection been made, we discern no reasonable probability that it would have resulted in an outcome more favorable to defendant. (E.g., People v. Lopez (2008) 42 Cal.4th 960, 966; People v. Maury (2003) 30 Cal.4th 342, 389.)
This reasoning also defeats defendant attempt to overturn his conviction in habeas corpus due to his trial counsel’s supposed incompetence. His petition for that writ (A125794) will be denied by separate order filed concurrently with this opinion. We cannot help noting that defendant’s trial counsel, in securing the very favorable plea bargain he did, and in keeping defendant on probation as long as he did, appears to have rendered singularly competent representation.
Because there were no “sentencing errors,” there is no need to address defendant’s contention that they were “cumulatively” prejudicial.
Defendant’s final contention involves a housekeeping matter. He points out, and the Attorney General does not dispute, that the abstract of judgment should be corrected to show that the amount owing on the restitution fine required by Penal Code section 1202.4 is only $120, not $400. Defendant’s point is well taken, and the matter will be corrected.
The judgment of conviction is affirmed. The clerk of the trial court is directed to prepare an amended abstract of judgment showing under “Financial Obligations” that defendant is liable for $120 “per PC 1202.4(b),” and to forward a certified copy to the Department of Corrections and Rehabilitation.
We concur: Kline, P.J., Lambden, J.