Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF10000954 Angel M. Bermudez, Judge.
Mark S. Devore, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Codrington J.
I
INTRODUCTION
Defendant Cory Ryan de la Garrigue appeals from judgment entered after defendant pled guilty to making a criminal threat, reduced to a misdemeanor (Pen. Code, §§ 17, subd. (b), 422 ; count 1), stalking (§ 646.9, subd. (a); count 2), driving under the influence, causing bodily injury (Veh. Code, § 23153, subd. (a); count 3), driving with blood alcohol concentration of.08 percent or more (Veh. Code, § 23153, subd. (b); count 4), and making harassing telephone calls, a misdemeanor (§ 653m, subd. (a); count 5). As to counts 3 and 4, defendant admitted enhancement allegations of personally inflicting great bodily injury (GBI) upon the victim (§§ 12022.7, subd. (a) and 1192.7, subd. (c)). The trial court sentenced defendant to a prison term of four years four months.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the absence of his attorney at defendant’s presentence interview violated his Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel. Defendant further argues that, at the sentencing hearing, he received ineffective assistance of counsel because his attorney failed to move to strike from the probation report defendant’s presentence interview statement. Defendant asserts that the trial court should not have considered his interview statement during sentencing because his attorney was not present during his interview. Defendant also asserts, and the People agree, that the abstract of judgment incorrectly states that the court imposed consecutive sentencing on count 4.
We conclude there were no violations of defendant’s constitutional rights or ineffective assistance of counsel, and affirm the judgment. As to the abstract of judgment, the superior court clerk is directed to correct the sentencing minute order for June 28, 2010, by deleting that the court imposed consecutive sentencing on count 4.
II
FACTUAL AND PROCEDURAL BACKGROUND
Because the plaintiff pled guilty before the preliminary hearing, this statement of facts is based on the facts contained in the presentence probation report, which the parties stipulated the trial court could use as the factual basis of defendant’s guilty plea.
Car Accident (Counts 3 and 4)
During the evening of April 19, 2010, at 10:22 p.m., defendant’s Hyundai Elantra struck John Doe’s Ford Ranger truck. When sheriff’s deputies arrived, they found defendant’s Hyundai on fire and the Ford Ranger “wrapped around a power line pole.” John Doe, the driver of the Ford Ranger, was pinned inside his vehicle and unresponsive. It took fire personnel 90 minutes to remove him from his vehicle. When he regained consciousness, John Doe could not remember his name or what happened. John Doe suffered lacerations to his face, head, arms, torso, and legs, as well brain swelling. He received staples to close a laceration to his head.
The probation report and amended complaint identify the car accident victim as “John Doe.”
Deputies noticed defendant, the driver of the Hyundai, smelled of alcohol and his eyes were bloodshot, watery, and dilated. Defendant’s Hyundai was littered with open beer cans and bottles. Defendant admitted he had been drinking about 12 hours before the collision and had consumed Xanax about half an hour before the accident. Defendant claimed he had been driving 35 miles per hour. As he entered the intersection of Murrieta Road and Cherry Hills Boulevard, he suddenly struck the Ford Ranger. Defendant claimed the Ford Ranger did not have its lights on.
Defendant was treated at the hospital for chest and facial pains caused by his air bag deploying. A blood sample taken from defendant at the hospital showed his blood alcohol level was.19 percent at the time of the collision. Defendant initially was in the same hospital room as John Doe. John Doe’s mother overheard defendant call a friend and ask to be picked up from the hospital and to bring beer when his friend came to pick up defendant.
According to the accident reconstructionist, the accident was caused by defendant crossing over the lane divider and colliding into the back of John Doe’s truck, causing it to roll over. During the sentencing hearing, the prosecutor noted that the probation report incorrectly stated that John Doe’s vehicle was parked in the middle of the street. The reconstructionist found that John Doe’s Ford Ranger was traveling at 35 miles per hour at the time of the accident and defendant’s vehicle was traveling at 55 miles per hour.
Criminal Threats, Stalking, and Harassing Telephone Calls (Counts 1, 2, and 5)
Earlier in the day on April 19, 2010, before the car accident, defendant and his girlfriend, Jane Doe, broke up. Defendant went to Jane Doe’s home around 10:00 p.m., to talk to her. She refused to let him in or come outside. While defendant was outside Jane Doe’s home, they spoke on the telephone. Defendant told Jane Doe he had been drinking, and threatened to kill Jane Doe and then himself because they could not be together. Several minutes after hanging up with defendant, Jane Doe received a call from paramedics, informing her that defendant had been in a serious car accident.
The probation report and amended complaint identify defendant’s ex-girlfriend as “Jane Doe.”
After defendant was released from the hospital that same evening, he repeatedly called Jane Doe. Jane Doe told defendant not to contact her and that she did not want to have anything to do with him. Defendant continued calling Jane Doe, saying he loved her, he wanted her back, and he was going to kill her and himself. Jane Doe believed that, between April 19, 2010, and April 21, 2010, she received approximately 200 telephone calls from defendant. When arrested on April 21, 2010, defendant admitted he was very depressed over breaking up with Jane Doe and had told her he would kill her and himself if they could not be together. Defendant claimed he said this only to get Jane Doe’s attention and win her back.
Criminal Proceedings
In May 2010, charges were filed against defendant in connection with the car accident on April 19, 2010, and for threatening, stalking, and repeatedly calling Jane Doe between April 19, 2010, and April 21, 2010. Defendant waived his right to a preliminary hearing, pled guilty to counts 1 through 5, and admitted the GBI enhancements as to counts 3 and 4. Defendant’s plea was subject to the following conditions: (1) probation would be decided by the court; (2) if the court denied probation, defendant’s prison term would be no greater than the low term on count 3, of four years four months (16 months for count 3, plus three years for the GBI enhancement); and (3) if the criminal threat charge (count 1) was not reduced to a misdemeanor under section 17, subdivision (b), defendant could withdraw his plea.
At the sentencing hearing on June 28, 2010, the trial court denied probation. The court reduced the criminal threat charge to a misdemeanor (count 1) and sentenced defendant to a prison term of four years four months.
III
POSTCONVICTION PROBATION INTERVIEW
Defendant contends his postconviction probation interview (presentence interview), in the absence of his attorney, violated his Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel.
A. Background Facts
After defendant entered his guilty plea, the court ordered the probation office to prepare a presentence report. Defense counsel stated that she would like to be present during defendant’s probation interview. She further stated she intended to contact the probation department. The trial court calendared the sentencing hearing. The court further instructed the court clerk to indicate on the court’s referral of the case to the probation department that defense counsel would like to be present during defendant’s interview.
Defendant’s presentence interview was conducted a month later and took place in the absence of defendant’s attorney. At the beginning of the interview, the probation officer advised defendant of his Miranda rights, which defendant waived. Defendant’s presentence interview was summarized in the probation report submitted to the court for consideration at sentencing. The report stated that defendant said during his interview that he had learned: “Don’t drink and drive, be more careful, and look out for idiots in the roadway.” The probation report further stated that, “[a]lthough he conveyed his apologies to the victim, he stated, ‘I just don’t know why he was in the middle of the road, ’ and inquired whether or not the victim was ‘drunk.’” With regard to Jane Doe’s allegations against him, the probation reports stated defendant said, “‘Its all lies.’ He indicated the victim was ‘psycho’ and ‘planned all this, ’ to have him arrested.... Despite denying any wrongdoing, he pled to the charges because he was advised it was the ‘best thing to do.’”
Miranda v. Arizona (1966) 384 U.S. 436, 477.
The probation officer noted in the report that defense counsel had emailed him the day of the presentence interview that she was reserving her comments concerning the appropriate sentence for the sentencing hearing. The probation officer recommended that defendant be granted probation for five years, conditional upon defendant serving 365 days in local custody and participating in a residential substance abuse treatment (RSAT) program.
At defendant’s sentencing hearing, the court considered the probation report, counsels’ arguments, and defendant’s statement to the court. During the sentencing hearing, defendant said he wanted to apologize to John Doe’s mother, and denied calling John Doe an idiot. John Doe’s mother had stated during the sentencing hearing that defendant had inferred during his presentence interview that John Doe was an “idiot.”
The court found that defendant was not remorseful and denied defendant probation. The court noted that defendant’s “statement is full of minimizing his own conduct and his own responsibility.... Instead of taking advantage of the situation and acknowledging mistakes and errors and taking fault and responsibility for his conduct, he deflects his responsibility to other people.” In addition, defendant referred to other drivers as idiots, which was a way of deflecting responsibility and not accepting it. The court construed defendant’s apology in court as “a false apology to the victim” because “in the probation officer’s report he stated, quote, ‘I just don’t know why [John Doe] was in the middle of the road, ’” and inferred that John Doe was an “idiot” in the roadway.
The court further noted that, during John Doe’s presentence interview, he accused John Doe of being “drunk, ” claimed Jane Doe’s allegations were “all lies, ” and called Jane Doe “a psycho, ” who “planned all this.” The court concluded that defendant “completely skirts responsibility for his own conduct.” Defendant denied being intoxicated, questioned his blood examination, and blamed John Doe for the accident, claiming he parked in the middle of the roadway. Furthermore, the probation officer concluded defendant did not appear to be remorseful.
The court not only found defendant was not remorseful, but also found that he posed a danger to others. The court found compelling the probation officer’s statement that “[h]is actions in the matter demonstrate he does not accept responsibility for his actions and has no control over his alcohol abuse.” The court concluded that under these circumstances, probation was inappropriate and the maximum prison term was warranted, particularly since John Doe could have died in the accident. The court sentenced defendant to four years four months in prison, the maximum sentence permissible under defendant’s conditional guilty plea.
B. Discussion
Defendant argues his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to counsel were violated because his attorney was not present during his presentence interview. We disagree. Defendant’s Fifth Amendment privilege was not violated because defendant had already pled guilty to the charged crimes. Furthermore, he was advised of his Miranda rights, waived them, and voluntarily participated in the presentence interview, without objection and without requesting his attorney. Although his attorney previously had requested to be present at the interview, and the court requested the court clerk to notify the probation office of this request, the absence of defense counsel during the interview did not violate defendant’s Fifth or Sixth Amendment rights.
Citing Brown v. Superior Court (2002) 101 Cal.App.4th 313, 320, the People argue the Sixth Amendment right to counsel does not extend to the presentence interview because it is not a critical stage of the proceedings. In Brown, at page 320, the court held the defendant did not have a Sixth Amendment right to counsel. The defendant in Brown pled guilty to stalking and was sentenced to three year’s probation. (Id. at p. 317.) The court ordered defendant’s probation modified to include the condition that the defendant submit to periodic polygraph examinations at his own expense. (Id. at pp. 317-319.) The defendant petitioned for a writ of mandate directing the trial court to vacate the order on the ground the probation condition imposing polygraph testing violated his Fifth and Sixth Amendment rights. (Id. at p. 317.) The court in Brown disagreed. (Id. at p. 320.)
As to the Fifth Amendment privilege against self- incrimination, the Brown court explained: “[U]nless Brown specially invokes the privilege, shows he faces a realistic threat of self-incrimination and nevertheless is made to answer the question or questions, no violation of his privilege against self-incrimination is suffered. [Citations.]” (Brown v. Superior Court, supra, 101 Cal.App.4th at p. 320.) As to the defendant’s contention the polygraph order violated his right to counsel under the Sixth Amendment, the Brown court stated, “it is without merit, since there is no right to counsel in a probation interview or therapy session.” (Ibid.)
Likewise, in Brown v. Butler (5th Cir. 1987) 811 F.2d 938, 941, citing on Baumann v. United States (9th Cir. 1982) 692 F.2d 565, 578 (Baumann), the court found that a probation presentence interview is not a critical stage of the proceedings and therefore the defendant did not have a Sixth Amendment right to counsel at the interview. The Butler court reasoned that “a probation officer... is an arm of the court charged with assisting the court at arriving at a fair sentence, ” rather than an agent of the prosecution. (Butler, at p. 941.) The court in Baumann noted that, regardless of the probation officer’s sentencing recommendation based on information gathered from interviewing a defendant, the trial court remained responsible for exercising its discretion in imposing an appropriate sentence. (Baumann, at p. 578.) The court in Baumann held “that a routine presentence interview of an individual convicted of a noncapital federal offense is not, under Estelle [v. Smith (1981) 451 U.S. 454]... a critical stage of the proceeding in which counsel’s presence, or advice, is necessary to protect the defendant’s right to a fair trial.” (Baumann, at p. 578.)
Nevertheless, defendant argues that under People v. Gutierrez (1986) 177 Cal.App.3d 92, 100-101 (Gutierrez), and Baumann, supra, 692 F.2d at pages 568-583, the presentence interview by a probation officer is a critical stage of the proceedings. Defendant’s reliance on Gutierrez is misplaced. In Gutierrez, at pages 100-101, the trial court ordered the probation office to prepare a presentence report. The defendant in Gutierrez argued on appeal that, because the preparation of the presentence report was a crucial stage of the proceedings, he had a right under the state constitution to a sworn certified interpreter during his interview. The defendant complained that, although he had an interpreter during the interview, the interpreter was not a sworn or certified interpreter. (Gutierrez, at p. 98.)
The court in Gutierrez stated that “Sentencing is a critical phase in a criminal proceeding” (Gutierrez, supra, 177 Cal.App.3d at p. 100), and “The probation officer’s report is an integral part of the critical stage of sentencing.” (Id. at p. 101.) The Gutierrez court, however, further noted that, although a defendant is “clearly constitutionally entitled to an interpreter at his sentencing hearing, ” (ibid.) this is not the case at a presentence probation interview because the interview is not a judicial proceeding held in a courtroom or in a formal type of setting. (Gutierrez, at pp. 100-101.) The Gutierrez court further held that the defendant waived his right to object not to having a sworn and certified interpreter at his presentence interview because he did not raise the objection during the sentencing hearing. (Id. at p. 101.)
Gutierrez, supra, 177 Cal.App.3d 92 does not support the proposition that defendant had a Sixth Amendment right to counsel at his presentence interview. On the contrary, Gutierrez supports the proposition that, even though sentencing is a critical stage of the proceedings triggering constitutional protections, a presentence interview is not such a proceeding. (Gutierrez, at pp. 100-101.) Furthermore, Gutierrez does not address a defendant’s Sixth Amendment right to counsel.
Defendant’s reliance on Baumann, supra, 692 F.2d 565is also not persuasive since defendant cites to language which is not from the majority opinion but, rather, is from federal Circuit Judge Pregerson’s concurrence/dissent, in which Pregerson disagrees with the majority’s view that the presentence interview with a probation officer is not a critical stage. (Id. at p. 583, Pregerson’s concurrence/dissent.)
Defendant also relies on Estelle v. Smith (1981) 451 U.S. 454, 470-471 (Estelle), but as noted in Baumann, supra, 692 F.2d at page 578, the court in Estelle indicated that a routine presentence interview of an individual convicted of a noncapital offense, such as defendant, is not a critical stage of the proceedings. In Estelle, at pages 466-467, the trial court ordered an in-custody pretrial psychiatric examination of defendant to determine his competency to stand trial during a capital sentencing proceeding. The defendant complained that his Fifth and Sixth Amendment rights were violated because (1) he was not advised of his Miranda rights and (2) he and his attorney were not told his statements made during the examination could be used during the capital sentencing proceedings to determine whether he should be sentenced to death. The court in Estelle agreed that the defendant’s Fifth Amendment rights were violated because he was not advised of his Miranda rights. (Estelle, at p. 469.)
Here, the probation officer advised defendant of his Miranda rights before interviewing defendant and defendant voluntarily waived his Miranda rights, including the right to have an attorney present during his interview. Furthermore, defendant’s interview, unlike in Estelle, was posttrial, after defendant had already pled guilty to the charged offenses.
The court in Estelle further concluded the death penalty was improperly imposed on the defendant because the defendant’s pretrial psychiatric interview, which was relied upon at the penalty phase, proceeded in violation of the defendant’s Sixth Amendment right to counsel at the pretrial psychiatric interview. (Estelle, supra, 451 U.S.at p. 471.) The Estelle court reasoned that the interview was at a critical stage of the proceedings. (Id. at p. 470.)
In the instant case there was no violation of defendant’s Sixth Amendment right to counsel because the presentence interview was not pretrial, defense counsel was informed defendant would be interviewed by a probation officer, and defendant was advised of, and voluntarily waived, his Miranda rights, including being told he had a right to have his attorney present. Furthermore, this is not a capital case. Defendant’s postconviction probation interview did not involve a “life or death matter, ” as in Estelle. (Estelle, supra, 451 U.S.at p. 471.)
Although defense counsel requested to be present at the interview, defense counsel was aware the interview would take place and even stated that she would contact the probation office. In addition, on the day of the interview, defense counsel emailed the probation officer, informing him she reserved her comments concerning defendant’s sentence, for the sentencing hearing. There is no evidence that defendant requested his attorney be present at the interview or objected to proceeding with the interview in her absence. Under these circumstances, defense counsel’s absence at defendant’s presentence interview did not violate defendant’s Sixth Amendment right to counsel.
Because there was no violation of defendant’s Fifth and Sixth Amendment rights, we reject defendant’s contention his attorney committed ineffective assistance of counsel by failing to object to defendant’s presentence interview statement during sentencing. To secure the reversal of a conviction based on ineffective assistance of counsel, a defendant must show (1) “performance that was deficient, and (2) prejudice resulting from such deficient performance. [Citation.] The first element ‘requires a showing that “counsel’s representation fell below an objective standard of reasonableness.” [Citations.]’... Further, ‘[i]f the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation.’ [Citation.] The ‘prejudice’ element requires a showing ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been more favorable to defendant, i.e., a probability sufficient to undermine confidence in the outcome.’ [Citation.] The burden of establishing ineffective assistance is upon the party claiming it. [Citation.]” (People v. Roberts (2011) 195 Cal.App.4th 1106, 1129; see also In re Marquez (1992) 1 Cal.4th 584, 602-603, quoting Strickland v. Washington (1984) 466 U.S. 668, 688.)
Here, the record sheds no light on why defense counsel did not object to defendant’s interview statement. However, as discussed above, there was good reason not to object since the absence of defense counsel at the interview did not violate either defendant’s Fifth Amendment right against self-incrimination or Sixth Amendment right to counsel. We thus cannot say defense counsel’s performance was deficient when measured against the standard of a reasonably competent attorney. Defendant was also not prejudiced by his attorney’s failure to object to defendant’s interview statement since it is not reasonably probable that the outcome would have been any different.
IV
DISPOSITION
The superior court clerk is directed to correct the sentencing minute order of June 28, 2010, and to prepare an amended abstract of judgment, reflecting that sentencing on count 4 is ordered to run concurrent, not consecutive, to sentencing on count 3, and then ordered stayed pursuant to section 654. The trial court clerk is further directed to forward a copy of the amended abstract of judgment to the Department of
Corrections and Rehabilitation. In all other respects, the judgment is affirmed. There is no change in the judgment.
We concur: King Acting P.J., Miller J.