Opinion
C087610
09-25-2019
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ALLEN LUDLAM, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F7704)
After defendant Michael Allen Ludlam pleaded no contest to administering methamphetamine to a minor and misdemeanor battery, and sustained numerous violations of probation, the trial court terminated probation and sentenced him to the aggravated term of nine years in state prison. Defendant appeals the imposition of the aggravated term, arguing the trial court improperly relied on the victim's status as a minor, which was also an element of the offense, to aggravate the term. We affirm the judgment.
BACKGROUND
When the victim was 17 years old, he reported he had spent time with defendant in defendant's home. Defendant flirted with the victim, shared marijuana with him, and eventually gave him methamphetamine. One day, defendant used a hypodermic needle to inject the victim in the neck. When the victim woke up the next morning, he was naked, and his rectum was bleeding and sore. He believed he had been sodomized. Law enforcement officers went to defendant's home, obtained a DNA sample from defendant, and searched his home. Officers found methamphetamine and hypodermic syringes in the home. Defendant admitted knowing the victim, using marijuana with the victim, and using methamphetamine himself. A blanket from the home contained sperm DNA from defendant, mixed with the victim's DNA.
Defendant pleaded no contest to administering methamphetamine to a minor (Health & Saf. Code, § 11380, subd. (a)) and misdemeanor battery (Pen. Code, § 242). The trial court granted him five years' probation. In exchange for the plea, the trial court dismissed the remaining counts, which included sodomy of an unconscious minor (§ 286, subd. (f)); sodomy by administration of a controlled substance (§ 286, subd. (i)); sexual penetration with a foreign object (§ 289, subd. (d)); and sexual penetration with a foreign object upon an intoxicated victim (§ 289, subd. (e)). Over the course of approximately three years, defendant admitted violating probation three times, each time related to possessing methamphetamine and paraphernalia.
Undesignated statutory references are to the Penal Code.
At sentencing, the trial court reviewed the probation report and heard argument of the parties. The trial court found the aggravated term on the felony count was appropriate, because "I do find the victim to be particularly vulnerable as a minor; the Defendant took -- and the Defendant's prior performance on probation or other supervision was particularly unsatisfactory." The trial court found no factors in mitigation. Accordingly, the trial court imposed a nine-year sentence on furnishing methamphetamine to a minor and credit for time served on the misdemeanor battery.
DISCUSSION
Defendant contends the trial court improperly relied on the victim's status as a minor to deem him particularly vulnerable and justify the imposition of the aggravated term. He claims the victim's status as a minor was an element of the offense; therefore, it could not be used as an aggravating factor. Defendant also argues if this claim is forfeited for failure to object, counsel was ineffective. The People contend the issue is forfeited by the failure to object, it was not only the victim's status as a minor that supported the finding that he was particularly vulnerable, and defendant's poor performance on probation supported the imposition of the aggravated term.
At sentencing, defense counsel argued the court should reinstate probation and impose the mitigated term. He did not object to the reasons the trial court gave for imposing the aggravated term. The court's use of improper factors to impose the upper term is a discretionary choice that is forfeited if not brought to the sentencing court's attention. (People v. Scott (1994) 9 Cal.4th 331, 352-353, 356 ["complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal"].) Defendant's claim is forfeited; however, we review defendant's claim that counsel rendered ineffective assistance in failing to object.
To establish ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693-694, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "[T]he burden is on the defendant to show (1) [defense] counsel failed to act in the manner to be expected of reasonably competent attorneys acting as diligent advocates and (2) it is reasonably probable that a more favorable determination would have resulted in the absence of counsel's failings." (People v. Lewis (1990) 50 Cal.3d 262, 288.) "[T]here is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' [Citation.]" (People v. Lucas (1995) 12 Cal.4th 415, 437.) The defendant bears the burden of establishing an ineffective assistance claim. (Id. at p. 436.) "Counsel's failure to make a meritless objection does not constitute deficient performance." (People v. Mitcham (1992) 1 Cal.4th 1027, 1080; People v. Anderson (2001) 25 Cal.4th 543, 587.) "Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile." (People v. Price (1991) 1 Cal.4th 324, 387.)
The parties correctly agree that "[a] circumstance which is an element of the substantive offense cannot be used as a factor in aggravation. [Citation.]" (People v. Clark (1992) 12 Cal.App.4th 663, 666.) Thus, "aggravating a sentence due to 'particular vulnerability,' where vulnerability is based solely on age, is improper when age is an element of the offense. [Citations.]" (People v. Dancer (1996) 45 Cal.App.4th 1677, 1693-1694; overruled on another ground in People v. Hammon (1997) 15 Cal.4th 1117, 1123.) Age alone cannot support a finding of victim vulnerability when the victim's age is an element of the offense, "[h]owever, 'particular vulnerability' is determined in light of the 'total milieu in which the commission of the crime occurred . . . .' [Citation.]" (Dancer, at p. 1694.) Thus, a victim's age considered with other circumstances of the crime can establish " 'particular vulnerability' " as an aggravating factor. (Ibid.) "[F]or purposes of finding the aggravating factor of particular vulnerability, ' "[p]articularly . . . means in a special or unusual degree, to an extent greater than in other cases. Vulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant's criminal act." ' " (People v. DeHoyos (2013) 57 Cal.4th 79, 154.) "The obvious purpose of increasing punishment based on victim vulnerability is to deter criminal conduct that seeks to exploit the particularly vulnerable victim." (People v. Spencer (1996) 51 Cal.App.4th 1208, 1223.)
A single aggravating factor is enough to uphold the imposition of the upper term. (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1371.) The trial court denied probation based on defendant's numerous prior felony convictions, the nature and seriousness of the offense as compared to other instances of the same crime, defendant being an active participant in the crime, and the manner of the crime demonstrating some criminal sophistication. As to the seriousness of the offense compared to others, and the demonstration of sophistication, each of these factors related to the fact that defendant gave the victim drugs to facilitate a sexual assault. The probation report also lists a number of aggravating factors relative to defendant. Trial counsel could have reasonably concluded that if he had objected, the trial court would have simply chosen to rely on any of these factors to impose the upper term. Accordingly, an objection would have been futile.
In addition, although the plea did not include a waiver under People v. Harvey (1979) 25 Cal.3d 754, the Harvey rule does not apply where the dismissed counts are "transactionally related" to the count to which the defendant pleaded guilty. (Id. at p. 758, citing People v. Guevara (1979) 88 Cal.App.3d 86, 92-94.) The sentencing court is permitted to consider facts underlying the charges that were dismissed pursuant to the plea bargain, if those facts were also transactionally related to the offense to which defendant pleaded guilty. (Harvey, at p. 758.) "Cases interpreting the exception [in the Harvey rule] have identified facts from which it could at least be inferred that some action of the defendant giving rise to the dismissed count was also involved in the admitted count." (People v. Beagle (2004) 125 Cal.App.4th 415, 421.) In a single night described by the victim, defendant injected him with methamphetamine and sodomized him while he was unconscious. The dismissed charges included sodomy of an unconscious minor, sodomy by administration of a controlled substance, sexual penetration with a foreign object, and sexual penetration with a foreign object upon an intoxicated victim. The administration of drugs to the victim rendered the victim unconscious, thereby facilitating defendant's sexual assault of victim. These offenses were based on a single occasion described by the victim and were transactionally related. Thus, the trial court could properly consider the facts and circumstances underlying the dismissed charges. (See People v. Bradford (1995) 38 Cal.App.4th 1733, 1739.)
Here, defendant developed a friendship with the victim and had him repeatedly in his home. During the course of their friendship, he shared marijuana with the victim, developing a particular kind of relationship and trust with the victim. On the night of the offense, defendant injected the victim with methamphetamine and sodomized him while he was unconscious. Drugging the victim certainly left the victim especially unguarded and susceptible to a sexual assault. That is, particularly vulnerable. The trial court was entitled to consider the facts underlying the dismissed counts as well as the offense to which defendant pled and how those related to the victim's particular vulnerability. Trial counsel reasonably could have concluded that the trial court's finding that the victim was particularly vulnerable included a consideration of those facts underlying the dismissed counts and that an objection would be meritless or futile. Accordingly, we reject appellant's claim of ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: DUARTE, J. RENNER, J.