Opinion
C042626.
10-23-2003
THE PEOPLE, Plaintiff and Respondent, v. KURTIS DONALD DUNCAN, Defendant and Appellant.
A jury found defendant Kurtis Donald Duncan guilty of possessing methamphetamine for sale (count 1) (Health & Saf. Code, § 11378), possessing MDMA (count 2) (§ 11377, subd. (a)), and possessing methamphetamine (count 3) (§ 11377, subd. (a)). The trial court sentenced defendant to concurrent upper terms of three years on counts 1 and 2, and eight months consecutive on count 3.
Further undesignated section references are to the Health and Safety Code.
On appeal, defendant argues the trial court erred in failing to state the "ultimate facts" as reasons for imposition of the upper term on counts 1 and 2. Alternatively, he argues that trial counsel was ineffective for failing to object to the omission of reasons for the upper term, and argues defendant would likely have received a more favorable sentence had his counsel done so. We disagree and shall affirm.
FACTS AND PROCEDURAL HISTORY
Originally filed separately, counts 1 and 2 were consolidated with count 3 (formerly case No. CM017496) on September 3, 2002.
On April 14, 2002, defendant was a passenger in a vehicle stopped by Paradise police. The police seized four bindles of methamphetamine within inches of the passenger seat.
Counts 1 and 2
On June 4, 2002, police served a search warrant on defendant and his residence. Methamphetamine, pay-owe sheets, and drug paraphernalia were discovered in defendants truck and in his home. A tablet of MDMA (Ecstasy) was also found in defendants room.
Sentencing
At the beginning of the hearing, the trial court stated it had read, considered and signed the probation officers report. The probation officers report recommended imposition of the middle term (two years) for count 1, and consecutive eight month terms for counts 2 and 3, for a total of three years four months. The probation officer did not specifically address the consecutive sentences, but cited defendants active participation in the crimes, his increasingly serious and frequent convictions, his poor performance on probation, and his prior prison term as aggravating factors. Only defendants remorse and his acceptance of responsibility for his actions were noted as mitigating factors. The trial court announced it intended to impose the upper term on counts 1 and 2, to be served concurrently, and to run count 3 consecutively. Defense counsel stated he "concurred" with the courts intended ruling, but believed counts 1 and 2 arose from the same incident.
Counsel originally stated that he believed counts 2 and 3 arose from the same incident; when the court responded that it believed counts 1 and 2 arose from the same incident, he responded, "Court is correct."
The trial court imposed its intended sentence, specifying that the aggravating factors outweighed the mitigating factors on count 1, and the same sentence would be imposed on count 2. The trial court stated a consecutive sentence would be imposed on count 3 because "the crimes were independent of each other."
DISCUSSION
I
Defendant argues that the trial court erred in failing to give a statement of reasons referring to "ultimate facts" to support the upper term in counts 1 and 2. Defendant argues that the omission of a statement of reasons was not harmless error because there were both aggravating and mitigating circumstances which could have justified a lesser term.
Court rules permit a trial court to impose the upper term when circumstances in aggravation outweigh circumstances in mitigation. (Cal. Rules of Court, rule 4.420(b).) The trial court is required to state the reasons for its choice of the upper term on the record, in order to permit meaningful appellate review, and may not simply incorporate the probation report by reference. (People v. Fernandez (1990) 226 Cal.App.3d 669, 678-679; rule 4.420(e).)
In this case, the record is silent. However, defendant failed to object to the trial courts omission of a statement of reasons. The failure to state reasons or the use of improper circumstances for a sentencing decision is not a jurisdictional error. (People v. Scott (1994) 9 Cal.4th 331, 352-353.) Failure to object waives the issue for appeal. (Ibid.)
II
Defendant alternatively argues that trial counsel was ineffective for failing to object to the lack of a statement of reasons by the court for imposing the upper terms on counts 1 and 2.
In order to demonstrate ineffective assistance of trial counsel due to failure to make an objection, defendant must show trial counsels performance was objectively unreasonable and must demonstrate a reasonable probability that, but for counsels errors, defendant would have obtained a more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 ; People v. Ledesma (1987) 43 Cal.3d 171, 216-218; People v. Fosselman (1983) 33 Cal.3d 572, 584.) If the defendants showing is insufficient as to one prong of this test, we need not reach the other. (Strickland v. Washington, supra, at p. 697.)
Defendant contends that there could be no tactical reason for his attorney not to object to the trial courts failure to state reasons for its sentencing choice, and that defendant "would likely have received a sentence more favorable" if his attorney had objected. We disagree.
Defendants attorney reasonably could have concluded that an objection would have been futile in terms of obtaining a better result. (People v. Constancio (1974) 42 Cal.App.3d 533, 546 ["It is not incumbent upon trial counsel to . . . undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel"].) Indeed, as the People point out, because the court had imposed concurrent rather than consecutive sentences on counts 1 and 2, defendants attorney "may well have recognized that . . . [a] request for reasons could have caused the court to reconsider the gravity of the aggravating factors and impose the highest sentence available, which would have been an upper term for count [1] and consecutive sentences for both counts [2] and [3]. Counsel may well have recognized that the aggravating factors were significant, that [defendant] was a long[-]term drug user and dealer, and that [defendant] was fortunate to receive any breaks at sentencing at all."
Not only did the probation report identify multiple aggravating circumstances (defendants active participation in the crimes, his increasingly serious and frequent convictions, his poor performance on probation, and his prior prison term), defendants neighbors wrote letters to the court detailing his harassment, intimidation, and open drug trafficking. And the sole mitigating factors of remorse and acceptance of responsibility were belied by defendants own letter to the court, stating he had been injecting methamphetamine for more than 20 years and began doing so again the night he was released from prison. And defendant increased his drug dealing activity in June after his April arrest; hence, his postarrest remorse is a less persuasive counterbalancing factor in mitigation.
Under the circumstances, defense counsel reasonably could have concluded that the sentence imposed by the court was the best that defendant could receive, and thus, reasonably could have made the tactical decision to accept the sentence without objection, rather than risk having the court impose a harsher sentence after reflecting further on the sentencing factors.
For this reason, and because it is not reasonably likely that defendant would have obtained a more favorable result if defense counsel had objected to the lack of reasons for imposing the upper but concurrent terms, the claim of ineffective assistance of counsel fails.
III
We note several errors requiring modification of the judgment. Defendant was convicted of three drug offenses. The trial court imposed one "drug fine" of $135. The abstract of judgment refers to one $135 drug laboratory fee, not divided into fees and assessments.
The fee is mandatory for each drug offense, not each case, and is not subject to a finding of defendants ability to pay. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1153; People v. Martinez (1998) 65 Cal.App.4th 1511, 1519.) Thus, the judgment must be modified to provide for a $50 criminal laboratory analysis fee for each of the three drug offenses. (People v. Martinez, supra, at p. 1519.)
Further, we assume the trial courts reference to a "drug fine" of $135 means it intended to impose the $50 fine under section 11372.5, plus the required penalty assessments of $50 (Pen. Code, § 1464, subd. (a)) and $35 (Gov. Code, § 76000), as detailed in the probation officers recommendation.
The imposition of penalty assessments is mandatory. (People v. Talibdeen, supra, 27 Cal.4th at p. 1155; People v. Terrell (1999) 69 Cal.App.4th 1246, 1256-1257; People v. Martinez, supra, 65 Cal.App.4th at pp. 1520-1522.)
Similarly, the trial court imposed one "drug program fee" of $ 405 (§ 11372.7). This fee, although not mandatory, is also subject to applicable penalty assessments. It is within our power to correct this omission on appeal. (People v. Smith (2001) 24 Cal.4th 849, 853; People v. Talibdeen, supra, 27 Cal.4th at p. 1157; People v. Stone (1999) 75 Cal.App.4th 707, 717-718; see also People v. Hong (1998) 64 Cal.App.4th 1071.)
This fee is also applicable to each offense, but it is not mandatory. When the record is silent as to a trial courts determination of a defendants ability to pay, it is assumed the trial court has found in the defendants favor. (People v. Martinez, supra, 65 Cal.App.4th at p. 1517.) Therefore, we assume that the trial court declined to impose the drug program fee on counts 2 and 3.
We will order the judgment modified to reflect these assessments. (People v. Talibdeen, supra, 27 Cal.4th at p. 1157; People v. Sanchez (1998) 64 Cal.App.4th 1329, 1331-1332.) In the interest of judicial economy, we do so without having requested supplemental briefing. A party claiming to be aggrieved by this procedure may petition for rehearing. (Gov. Code, § 68081.)
DISPOSITION
The judgment is affirmed, as modified. The superior court shall issue an amended abstract of judgment, reflecting imposition of separate drug laboratory fees on counts 1, 2, and 3, of $ 50 each (§ 11372.5), with penalty assessments of $50 each (Pen. Code, § 1464), and $35 each (Gov. Code, § 76000), for a total of $405.
The amended abstract shall specify that a drug program fee of $150 was imposed under section 11372.7 on count 1, with penalty assessments of $150, and $105, for a total of $405.
The superior court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections.
We concur: SCOTLAND, P.J., and ROBIE, J.