Opinion
C083684
06-12-2018
THE PEOPLE, Plaintiff and Respondent, v. LAURIE ANN JOHNSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MCYKCRF2012975)
Defendant Laurie Ann Johnson appeals from a judgment imposing the upper term of six years in state prison for her child endangerment conviction (Pen. Code, § 273a, subd. (a)), following revocation of probation previously granted for that offense. She contends the court violated rule 4.435(b)(1) of the California Rules of Court in selecting the sentence because it considered events occurring subsequent to the initial grant of probation, namely, her poor performance on probation. She further argues that the court erroneously chose the upper term based on circumstances in aggravation--the vulnerability of the victims--which were equivalent to elements of the child endangerment crime, and that the court failed to properly consider relevant mitigating factors, particularly her substance abuse, that were shown in the record. Alternatively, if the above issues are deemed forfeited, she contends her trial counsel was constitutionally ineffective for failing to raise the issues below.
Undesignated statutory references are to the Penal Code.
Further rule references are to the California Rules of Court. --------
We conclude defendant forfeited her arguments on appeal, and we reject defendant's ineffective assistance of counsel claim for lack of prejudice. We therefore affirm the judgment.
FACTS AND PROCEEDINGS
In June 2012, defendant was charged with one count of child endangerment. (§ 273a, subd. (a).) The complaint also alleged that defendant had two prior felony convictions that made her presumptively ineligible for probation. (§ 1203, subd. (e)(4).)
In November 2013, defendant pleaded guilty to the charge and admitted the two prior felony allegations in exchange for, among other things, four years of formal probation. The parties stipulated to the police report as the factual basis for the plea.
According to the police report, near midnight on July 1, 2011, officers responded to a call from defendant's neighbor that her three young children had been left home alone, and that one child had been found unclothed in the street. His wife had taken the child home and was waiting with the children. She said the children were scared and hungry, and broken glass was on the floor of the residence. One of the children told her that defendant had left to visit friends in Dunsmuir and that "Jim" was watching them. No one named Jim was present when officers arrived, however. Officers located Jim Slattery in an apartment down the street, and he said defendant had not asked him to watch her children. Defendant was intoxicated at a bar and her sister later came to pick up the children.
Prior to sentencing, the probation department prepared a probation report that listed two aggravating factors under rule 4.421, including that the victim was particularly vulnerable and that defendant's prior performance on probation or parole was unsatisfactory. The report also listed one mitigating factor under rule 4.423--that defendant voluntarily acknowledged wrongdoing prior to arrest or at an early stage of the criminal process. After concluding aggravation outweighed mitigation, the probation report recommended the upper term of six years if defendant was given a state prison commitment.
Because defendant had shown a willingness to comply with rehabilitative directions from probation, and under rule 4.413, "the crime was committed because of a mental condition not amounting to a defense," specifically her alcohol abuse, the probation report found that under rule 4.414, " 'favorable' outweighed 'unfavorable' when analyzing the criteria effecting probation." The report recommended suspending imposition of sentence for a period of four years and granting formal probation. The report noted, however, that "[i]f [defendant] fails to comply with the terms and conditions of probation, it is anticipated that a state prison commitment may become necessary." The court followed the probation report's recommendation and placed defendant on probation.
In June 2014, defendant failed to appear for a probation review hearing. The court summarily revoked probation and issued a bench warrant for her arrest. Over a week later, defendant was returned to the jurisdiction of the court, and released on her own recognizance on the same terms and conditions of probation. The court continued her probation in revoke status until she appeared at the next probation review hearing. She was ordered to appear for all future court appearances.
The next month, in July 2014, the prosecutor filed a notice of probation violation requesting that defendant's probation be revoked because she failed to comply with the terms of her probation by being drunk in public. The court summarily revoked probation. Defendant denied the violation and was released on her own recognizance subject to the original terms and conditions of probation.
On August 6, 2014, after defendant failed to appear for a violation of probation hearing, the trial court revoked probation and issued a bench warrant. Two weeks later, defendant was returned to the court's jurisdiction. The court released her on her own recognizance subject to the terms of her probation, and directed her to make all court appearances as ordered.
At a subsequent hearing in October 2014, the court requested an additional memorandum from the probation department before disposing of the violation of probation allegation. The court set another hearing in December 2014 for possible disposition of the violation of probation. Before the scheduled hearing, however, the probation department apparently filed a second notice of probation violation in November 2014.
Defendant failed to appear at the December violation of probation hearing, and her counsel requested a continuance due to illness. At a violation of probation hearing in January 2015, defendant admitted three alleged violations of probation. Defendant admitted to consuming alcohol on or about July 16, 2014, and to using methamphetamine on or about December 5 and December 19, 2014. The court set the matter for sentencing in February and ordered defendant to comply with all existing terms and conditions of probation.
Defendant failed to appear at the February sentencing hearing, and the court issued a bench warrant. She was subsequently incarcerated and later released after signing a promise to appear at a hearing in July 2015. Defendant failed to appear at the July hearing, and the court issued a bench warrant for her arrest.
Nearly a year later, in May 2016, defendant was again returned to the court's jurisdiction. A sentencing hearing on the violation of probation was set for July 2016. The court ordered her to comply with the terms of her probation as the terms of her release, and also ordered her to immediately report to the probation department. Defendant did not report to probation as ordered, and she failed to appear at the July sentencing hearing. An arrest warrant was issued and probation was summarily revoked. Another violation of probation was filed based on her failure to report to the probation department.
In October 2016, defendant admitted the new violation of probation for failing to report to the probation department as required. Sentencing on the admitted violations of probation was set for November 2016.
Prior to the sentencing hearing, the probation department prepared a supplemental report. According to the supplemental report, defendant's original offense was very concerning because the children were young enough that her abandonment could have led to serious injury or death to the children. The report also noted that defendant did have prior child endangerment convictions. Defendant's current performance on probation was also concerning. Defendant failed to attend ordered drug and alcohol classes, tested positive for methamphetamine, and absconded multiple times. The probation officer recommended that the court deny reinstatement on probation and instead commit defendant to the upper term of six years in state prison, which was previously suggested in the original probation report.
At the sentencing hearing on the violation of probation, the court stated that it had reviewed the initial probation report, the supplemental probation report, and the multiple allegations of violations of probation that had been filed in the case. The court indicated it was inclined to follow the probation department's recommendation to impose the upper term of six years, and asked for comments from counsel. The prosecutor agreed with the recommended sentence. Defense counsel, however, argued that the court had a full range of options including reinstating probation or imposing the low, middle, or upper term, and that the upper term was not warranted because "the factors in aggravation and facts in mitigation [in the original probation report] were, essentially, two to one, they were almost balanced." Counsel therefore requested the court reinstate defendant on probation with modified terms.
The court denied reinstatement on probation and sentenced defendant to the upper term of six years in state prison. Defendant timely appealed.
DISCUSSION
I
Consideration of Postprobation Circumstances in Choosing the Upper Term
Defendant contends the trial court abused its discretion and violated rule 4.435 by imposing the upper term based on events occurring subsequent to the initial grant of probation, that is, her poor performance on probation.
Preliminarily, the People point out that the forfeiture doctrine applies to claims that a trial court failed to properly make or articulate its discretionary sentencing choices. (People v. Scott (1994) 9 Cal.4th 331, 353.) "Ordinarily, an appellate court will not consider a claim of error if an objection could have been, but was not, made in the lower court. [Citation.] The reason for this rule is that '[i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided.' [Citations.] '[T]he forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.' [Citation.]" (People v. French (2008) 43 Cal.4th 36, 46.)
Here, defendant never objected to the trial court's purported reliance on her probation performance in choosing the upper term nor did she argue that rule 4.435 barred the court from considering such performance. She has therefore forfeited this claim on appeal.
II
Consideration of Aggravating and Mitigating Factors
Defendant contends the court improperly imposed the upper term based on a circumstance in aggravation--a particularly vulnerable victim--that was equivalent to an element of the crime. She also contends the court failed to properly consider a mitigating factor--her substance abuse--in choosing the upper term. After reviewing the record, we conclude defendant forfeited her arguments. Because defendant did not object below that the trial court misused or ignored aggravating or mitigating factors in selecting the upper term of imprisonment, she cannot belatedly assert the argument on appeal.
Defendant concedes her trial counsel did not phrase the argument in precisely the same manner as she does on appeal, but claims that her counsel's argument at the sentencing hearing was sufficient to preserve the objection. We disagree.
While it is true that an issue may be preserved for appeal even though an objection was not properly phrased and even if not stated in the most precise terms (People v. Briggs (1962) 58 Cal.2d 385, 410), a defendant's argument must at least apprise the court of the issue it was being called upon to decide. (People v. Scott (1978) 21 Cal.3d 284, 290.) Here, defense counsel argued that the one mitigating factor identified in the presentence probation report balanced against the two factors in aggravation thus meriting reinstatement of probation rather than the upper term. The argument that aggravating and mitigating factors balanced each other out is not the same as claiming, as she does now, that the court was barred from relying on one of the listed factors in aggravation or that the court had ignored other mitigating factors. Defendant has therefore waived her challenges on those grounds. (See People v. Scott, supra, 9 Cal.4th at p. 353 [waiver doctrine applies to claims that the trial court's stated sentencing reasons do not apply to the particular case, that the court purportedly erred in double-counting a particular sentencing factor, and that the court misweighed various factors].)
III
Ineffective Assistance of Counsel
Anticipating the forfeiture issues discussed above, defendant asserts that her counsel provided ineffective assistance by failing to object to the court's purported reliance on postprobation circumstances and its alleged failure to consider mitigating circumstances in selecting the upper term. We disagree.
"In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was 'deficient' because his 'representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citations.] Second [a defendant] must also show prejudice flowing from counsel's performance or lack thereof. [Citations.]" (People v. Jennings (1991) 53 Cal.3d 334, 357.) Prejudice is established if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington (1984) 466 U.S. 668, 694 .)
"If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Strickland v. Washington, supra, 466 U.S. at p. 697.) We follow that course here.
Assuming arguendo that defense counsel lacked a tactical reason for her failure to make the suggested arguments, and that her performance in this regard fell below an objective standard, defendant has nonetheless failed to establish prejudice. The trial court followed the recommendation of the probation report, which included two factors in aggravation: the vulnerability of the victim and defendant's prior poor performance on probation. The record does not suggest defendant would have received a more favorable sentence had counsel pointed out that postprobation circumstances could not be considered in determining the base term, especially since the record shows the court considered such circumstances when deciding whether to reinstate probation and not for imposing the upper term. Likewise, defense counsel, defendant, and the court all expressly referenced defendant's substance abuse issues and nothing suggests the court failed to consider that factor before selecting the upper term. Because defendant has failed to establish prejudice, her ineffective assistance claim fails.
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Mauro, J. /s/_________
Hoch, J.