Opinion
C089176
06-19-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMES ANTHONY HARRIS 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 16CF05777, 17CF05443)
After defendant James Anthony Harris Johnson violated probation in two criminal cases, a trial court sentenced him to a two-year term and an eight-month term, to be served consecutively. Defendant now asserts that the court failed to provide a sufficient statement of reasons to justify the consecutive sentences. He also claims his trial counsel provided ineffective assistance of counsel for failing to object to the court's error at the sentencing hearing. We will affirm the judgment.
BACKGROUND
The sentencing decision at issue concerned two separate criminal cases against defendant. In the first, case No. 16CF05777, defendant confronted the victim with a baseball bat outside of a convenience store. Defendant demanded that the victim give him his travel trailer back. The victim pulled out his cell phone to contact the police, but defendant grabbed the phone out of his hand. Defendant then smashed the windows of the victim's car with the bat. When apprehended by police, defendant claimed that he had recently had a travel trailer stolen, and believed that the victim's trailer was the same trailer.
Defendant pleaded no contest to one count of vandalism (Pen. Code, § 594, subd. (a)) and the court dismissed a count of interference with a wireless communication device (Pen. Code, § 591.5). The court placed him on formal probation for 36 months and sentenced him to 30 days in county jail. Defendant violated his probation terms on at least two occasions by failing to serve his entire time in custody and failing a drug test. After the latter incident, the court referred defendant to a local drug court program.
Approximately nine months after the crime in case No. 16CF05777, defendant committed a second crime, which was charged and sentenced as case No. 17CF05443. In this incident, defendant was observed at a casino on a security camera handing an item to a woman who was later detained. Deputies searched the woman and found 0.1 grams of methamphetamine. She claimed that she had obtained it from defendant and that he "gave it to her for her to try it."
Defendant pleaded no contest to one count of possession of a controlled substance for sale and the court found him in violation of his probation on the earlier case. (Health & Saf. Code, § 11378.) The court suspended imposition of sentence in both of defendant's cases and extended his formal probation to a term of five years. The court again referred defendant to drug court. Defendant violated the probation terms by moving without permission and the court ordered him into a residential treatment program. He then violated probation again by failing to attend outpatient treatment, and the court told him that he would receive a "last chance" by participating in a year-long treatment program. Less than one month later, defendant violated the probation terms by moving without informing probation and failing to appear in court.
The court terminated defendant's probation and proceeded to issue sentences for both cases. For case No. 17CF05443, the court sentenced defendant to the midterm of two years. For case No. 16CF05777, the court sentenced defendant to one-third the midterm, or eight months. The court ordered that the sentences be served consecutively, but did not offer any reasoning for that decision. Neither party objected to the consecutive sentences.
DISCUSSION
Defendant argues that the trial court incorrectly sentenced him to consecutive terms without providing a statement of reasons. The People concede this error, but argue that defendant forfeited the issue by failing to object at the sentencing hearing.
We agree that the issue was forfeited because defense counsel had an opportunity to object at the sentencing hearing but failed to do so. (People v. Morales (2008) 168 Cal.App.4th 1075, 1084; see also People v. Davis (1995) 10 Cal.4th 463, 552 [" 'Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention' "].)
Anticipating this conclusion, defendant urges us—without offering any rationale—to proceed to consider the issue, or, alternatively, to find that he received ineffective assistance of counsel. We conclude defendant has not established ineffective assistance of counsel.
To prevail on a claim of ineffective assistance of counsel, a defendant must show (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 [80 L.Ed.2d 674, 693, 696] (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) " 'Surmounting Strickland's high bar is never an easy task.' " (Harrington v. Richter (2011) 562 U.S. 86, 105 [178 L.Ed.2d 624, 642].)
To establish prejudice, "[i]t is not enough 'to show that the errors had some conceivable effect on the outcome of the proceeding.' " (Harrington v. Richter, supra, 562 U.S. at p. 104.) Rather, defendant must show a reasonable probability that he would have received a more favorable result had counsel's performance not been deficient. (Strickland, supra, 466 U.S. at pp. 693-694; People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694; accord, Ledesma, at p. 218.) The likelihood of a different result must be substantial, not just conceivable. (Harrington, at p. 112.) "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Strickland, at p. 697.)
When imposing consecutive rather than concurrent sentences, a trial court must state reasons for doing so. (Pen. Code, § 1170, subd. (c); Cal. Rules of Court, rule 4.406; People v. Neal (1993) 19 Cal.App.4th 1114, 1117.) The relevant factors a court can cite include whether the "crimes and their objectives were predominantly independent of each other"; "[t]he crimes involved separate acts of violence or threats of violence"; "[t]he crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior"; and any circumstances in aggravation or mitigation. (Cal. Rules of Court, rule 4.425; People v. Alvarado (2001) 87 Cal.App.4th 178, 194.) "Only one criterion is necessary to impose a consecutive sentence." (People v. King (2010) 183 Cal.App.4th 1281, 1323.)
Defendant's two crimes had independent objectives. The act of vandalism in case No. 16CF05777 occurred because defendant thought the victim had stolen his travel trailer, while the possession of methamphetamine in case No. 17CF05443 involved giving methamphetamine to someone else so that she could try it. They also occurred at different times—more than nine months apart from each other—and at different locations. Defendant had aggravating circumstances because he committed the crime in case No. 17CF05443 while he was on probation and ultimately did not perform well on probation. (Cal. Rules of Court, rule 4.421, subd. (b).) All of these factors support the trial court's decision, even if the court failed to articulate them at the hearing.
Defendant argues that an objection by defense counsel would have lead to a better outcome for him because he would have been able to argue to the court that the two crimes were not separate and "arose out of an aberrant period in his life when he was using drugs." But, as noted above, the crimes did not occur "closely in time and place," and we do not read the phrase "single period of aberrant behavior" in isolation to be so expansive that it can encompass a period of more than nine months simply because defendant was abusing drugs during that entire period. (People v. Martin (1992) 3 Cal.App.4th 482, 489.) Given the number of adequate reasons for issuing the sentences consecutively, it is not reasonably probable that defendant would have received a more favorable result had his counsel objected at the hearing. We conclude that he did not receive ineffective assistance from his trial counsel.
DISPOSITION
The judgment is affirmed.
/s/_________
BLEASE, Acting P. J. We concur: /s/_________
HULL, J. /s/_________
MAURO, J.