Opinion
F041835.
10-23-2003
THE PEOPLE, Plaintiff and Respondent, v. JOSE ROLANDO HERNANDEZ, Defendant and Appellant.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Carlos A. Martinez and Mathew Chan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Dibiaso, Acting P.J., Vartabedian, J., and Cornell, J.
SUMMARY OF PROCEEDINGS BELOW
In November 1998, appellant Jose Rolando Hernandez entered a plea of guilty to possession of cocaine and admitted that he was personally armed at the time of the offense. Although he failed to appear for his first sentencing hearing, he was apprehended and sentenced on April 10, 2002, to the upper term of four years, plus an additional consecutive four years on the arming enhancement, for a total term of eight years in state prison.
The facts of the offense are not relevant to the issues raised on appeal other than to state that appellant was arrested after a search of his apartment which uncovered a significant amount of cocaine stored in appellants boots. Appellant was found in the bedroom, with a loaded revolver lying close by.
DISCUSSION
On appeal appellant argues that the sentencing court erred by finding no factors in mitigation. However, appellant has waived his claim because he failed to raise the issue at the sentencing hearing. (People v. Scott (1994) 9 Cal.4th 331, 353 [waiver doctrine applies to claims involving the trial courts failure to properly make or articulate its discretionary sentencing choices, it is defendants duty to draw attention of court to missed sentencing factors].)
Even if we were to decide the issue on the merits, we would reject appellants claim of error because the record establishes that the court considered all potential mitigating factors — it simply rejected them. (See Cal. Rules of Court, rule 4.409 [court shall consider relevant criteria, and shall be deemed to have been considered unless the record affirmatively reflects otherwise]; rule 4.423 [list of factors in mitigation to be considered].) The sentencing courts reasons for rejecting the alleged mitigating factors are found in its comments and are supported by the record. Its statement that the court finds "no mitigating circumstances" is a conclusion reached after those factors offered were rejected. The sentencing court has always been free to weigh mitigating factors in terms of both quality and quantity. (People v. Roe (1983) 148 Cal.App.3d 112, 119; People v. Salazar (1983) 144 Cal.App.3d 799, 813; People v. Jones (1985) 164 Cal.App.3d 1173, 1181 [court may minimize or even dismiss mitigating factors without stating its reasons].) People v. Burney (1981) 115 Cal.App.3d 497, which holds it is error not to consider mitigating factors, does not apply because the record affirmatively establishes the court did consider all the relevant criteria.
Although defense counsel stated that he could point to no "formal circumstances" in mitigation, he argued several. He told the court that appellants criminal history was "predominantly misdemeanors" with only one felony, which was "not a real grievous offense." He stated appellant had "never been to prison before." He also argued that appellant "admitted wrongdoing and pled guilty prior to the time the trial was set." Counsel also challenged several of the circumstances listed in the probation report as aggravating factors and noted that appellant had not had any contact with law enforcement during the four years he was a fugitive. The court noted that appellant has been "a fugitive for four years. Thats a crime." Counsel explained that appellant had not appeared for sentencing because his father was ill in Mexico.
Counsel also stressed that appellant had not forced a trial on the offense, but entered a plea and reminded the court that appellant was relatively young when he committed the offense. The court commented that appellant was arrested in August and did not plea until November. The court also commented that although he was only 19 when the offense was committed, appellant had a lengthy criminal history, had never "come close to completing a probationary period without reoffending," and that his record on probation was "horrendous."
Appellant argues he was denied effective assistance of counsel at sentencing because counsel failed to argue that appellant had voluntarily admitted wrongdoing at the time of the search, had only had a seventh grade education and worked for farm labor employers. However, appellant cannot establish prejudice resulted from these omissions. None of these factors was likely to have persuaded the court to sentence appellant to a lesser term. (People v. Riel (2000) 22 Cal.4th 1153, 1175 [to succeed on a claim of ineffective assistance of counsel, an appellant must show that counsels performance was deficient when reviewed by an objective standard of reasonableness under prevailing professional norms and he must show prejudice, i.e., that it is reasonably probable, but for counsels failings, the result would have been more favorable to the defendant]; People v. Burbine (2003) 106 Cal.App.4th 1250, 1265 [no ineffective assistance when counsel fails to call attention to mitigation factor where no reasonable probability court would have imposed lesser sentence absent omission].)
Although appellant admitted to police that the cocaine was his, he did not enter his plea until the day of trial and he did so in exchange for the dismissal of a Penal Code section 12022, subd. (a)(1) enhancement. He has since denied committing the offense during the interview with the probation officer. There is thus no unequivocal admission of wrongdoing. (See People v. Alexander (1992) 8 Cal.App.4th 602, 606 [a plea agreement which leads to the dismissal as part of a plea agreement of enhancement allegations is outside the scope of rule 423(b)(3)]; People v. Holguin (1989) 213 Cal.App.3d 1308, 1318 [confession to police, but refusal to acknowledge wrongdoing in judicial proceedings, should not be considered a mitigating factor because acknowledgment is equivocal].) Appellant had a long criminal history, there was a substantial amount of cocaine involved, he was armed with a loaded gun and he failed to appear at his first sentencing hearing, remaining a fugitive for four years until he was picked up for additional offenses. While it is true the probation report recommended a lesser sentence, it was dated November 1998 and thus did not include consideration of appellants failure to appear at sentencing nor his subsequent behavior during his time as a fugitive. The court was free to reject the recommendation, even if it were to remain the same after considering subsequent events, which in our opinion is unlikely. (People v. Warner (1978) 20 Cal.3d 678, 683 [court not required to follow the recommendations in probation report]; People v. Downey (2000) 82 Cal.App.4th 899, 910 [same].) We find appellant had not established prejudice, even if counsels representation fell below professional norms, an issue we do not address.
DISPOSITION
The judgment is affirmed.