Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. Nos. FCR210090, FCR215965
SIMONS, Acting P.J.
Defendant Timothy Grauer Marshall appeals an order sentencing him to the California Rehabilitation Center (CRC) after he was found to have violated his probation. He contends the court failed to exercise its judicial authority in refusing to reinstate him on probation. Alternatively, he argues the refusal to reinstate him on probation was an abuse of discretion. We conclude the former claim is waived and reject the latter claim on the merits.
BACKGROUND
On September 29, 2004, pursuant to a plea bargain, appellant pled no contest in two cases as follows: (1) in People v. Marshall (Sonoma County Super. Ct. No. FCR210090), to possession of methamphetamine for sale (Health & Saf. Code, § 11378); and, (2) in People v. Marshall (Sonoma County Super. Ct. No. FCR215965), to maintaining a place for selling or using a controlled substance (Health & Saf. Code, § 11366) and admitted arming and on-bail enhancements (Pen. Code, §§ 12022, subd. (a)(1), 12022.1)) attached to that count.
In exchange for his no contest pleas, numerous other charges were dismissed.
The probation officer’s October 27, 2004 presentence report noted that in both cases a handgun was found. Three years’ probation was recommended in light of appellant’s minimal prior record and willingness to abide by all probation conditions. A Category II residential drug treatment program was also recommended.
On October 27, 2004, the sentencing court (Judge Smith) suspended imposition of sentence in both cases and placed appellant on three years’ probation with various probation conditions, including that he commit himself to a Category II residential drug treatment program.
In August 2005, the probation officer filed a request to revoke appellant’s probation because appellant tested positive for methamphetamine and amphetamine. On September 13, appellant admitted the probation violation and the court accepted the admission and found him in violation of his probation.
An October 11, 2005 supplemental probation report stated that appellant had graduated from Haven House in June 2005 after completing a six-month residential treatment program. Reinstatement on probation was recommended because the September violation was appellant’s first violation, and he was attempting to be clean and sober. It was also recommended that probation be modified to require appellant to reside in Serenity Home for a minimum of six months and a 60-day jail sentence be imposed and stayed pending a six-month progress report.
On October 11, 2005, the court (Judge Smith) sentenced appellant to the aggregate term of five years eight months in state prison as follows: The two-year midterm for the methamphetamine possession charge in case No. FCR 210090, plus a consecutive eight-month (one-third the midterm) term for selling or using a controlled substance in case No. FCR 215965, plus a consecutive two-year term on the on-bail enhancement and a consecutive one-year term on the arming enhancement. However, the court suspended execution of the sentence and modified appellant’s probation to require that he spend at least six months in the Serenity House drug treatment program with no time credits granted for his stay there.
In January 2006, the probation officer filed another request to revoke appellant’s probation because appellant was dismissed from the Serenity House program for noncompliance. At the April 12 hearing, the court (Judge Ely) agreed to modify appellant’s probation to require him to enter and successfully complete a Category II Genesis House residential treatment program, and extended probation until October 29, 2009. The court expressly stated “I want you to know, of course, this has been said before, I’m saying it again, zero tolerance. I want you to succeed. This is the way you can prove it. Please do.” On June 13, 2006, the court agreed to modify the probation order specifying that appellant could be placed at either a Category I or II program at Genesis House. Appellant entered the Genesis House program on July 24, 2006.
In April 2007, the probation officer filed a third request to revoke appellant’s probation as a result of appellant’s discharge from the Genesis House program for violating various program rules.
Probation Revocation Hearing
On May 15, 2007, at the commencement of the probation revocation hearing, probation officer Joel Quiban testified that on March 28, Genesis House’s program director informed him that appellant was discharged from the program on March 26 for excessive program violations. Those violations included use of tobacco, distributing tobacco, being repeatedly argumentative with staff when confronted with his behavior, cheating on his disciplinary essay and “holding contracts.” Quiban explained that holding contracts are agreements between program residents not to disclose information of misconduct or misbehavior in the program. Quiban said appellant contacted him on March 28, reported his discharge from Genesis House and admitted to smoking at Genesis House and not fully completing his disciplinary essay.
Appellant testified that between his July 24, 2006 Genesis House admission and his meeting with its counselors in January 2007, he was holding contracts. However, at that January meeting he disclosed to staff all the contracts he had been holding since entering the program. As a consequence, he was required to shave his facial hair and complete a “writing discipline.” Appellant said he complied with both requirements. As of January he was in phase II of the program, and in March he progressed to phase III, the final phase in the program. At the time of his discharge he was approximately three months from completing the program. Appellant said that in March he was told that he had miscounted the words on his disciplinary essay and thereby manipulated the discipline, and the next day he was discharged from the program. Appellant denied purposefully manipulating the writing discipline and said he had actually written more words than required. He admitted that another essay was short, but said he made up the missing words.
The January 20, 2007 notes from appellant’s Genesis House counselor, Joel Hartman, stated, “[Appellant] was caught violating the smoking rule, again, and was sent back to Day, 1, Phase I. In response, he decided to get honest about an extensive amount of rule violations and dishonesty that was going on in the house. [Appellant] was involved in smoking and stealing fund raising money from the program and had knowledge of his peers violating many other serious rules.”
On cross-examination appellant admitted he had previously been discharged from the Serenity House program for violating similar types of rules. The court (Judge Getty) sustained the probation violation.
In July 2007, appellant argued in favor of a further grant of probation on the ground that he had been sober for the last two years and his rule violations at Gemini House were minor. The prosecutor argued for imposition of appellant’s sentence. The court refused to reinstate appellant on probation.
Attached to the probation officer’s July 23, 2007 supplemental placement report was a March 26, 2007 letter from Genesis House’s executive director to Quiban informing Quiban of appellant’s termination. The letter stated that appellant had been involved in holding contracts involving the use and distribution of tobacco products in violation of program rules. The letter also stated that appellant had recently become argumentative when confronted, had excuses for his behavior and had been caught cheating on discipline essays. Appellant’s progress in treatment was summarized as “marginal,” and his treatment experience was summarized as follows: “[Appellant] had a consistent pattern. He would be disrespectful and argumentative until his consequences became unmanageable, then he would be cooperative temporarily. [Appellant] did no more than was required of him and on several occasions broke smoking rules and stole funds from the house. He was frequently caught up in negativity. Staff attempted interventions including setting [appellant] back in phase, loss of privileges and other discipline. He did not respond to any of these. Ultimately he was told that continuing his dishonesty would result in discharge. Every reasonable attempt was made to give [appellant] a chance. However, [appellant] recently was caught cheating on his disciplines essays and making a comment to a new family member recently about feeling justified taking program donation money. [Appellant’s] behavior was corrupt and he was doing time.”
The probation officer recommended that appellant’s probation be revoked and he be committed to the California Department of Corrections and Rehabilitation for the following reasons: (1) He was unsuccessfully terminated from the residential treatment program prior to its completion; (2) he was aware that failure to complete the treatment program could result in a recommendation of imposition of his sentence; (3) he continues to fail despite being offered rehabilitation opportunities; (4) his participation in the treatment program was less than satisfactory; (5) he is a continuing risk to community safety and property; (6) he is a flight risk; (7) past and present revocation proceedings reflect a continuous pattern of noncompliance; and (8) he did not pursue any other structured treatment program when he left the residential treatment program.
On July 23, 2007, the court (Judge Getty) committed appellant to CRC for the five year eight month term set by Judge Smith in October 2005. On August 7, the court gave appellant 883 days credit in case No. 210090 and 18 days credit in case No. 215965. (Pen. Code, § 4019.)
DISCUSSION
I. Appellant Waived the Claim the Court Abdicated Its Judicial Authority in Refusing to Reinstate Probation
When a trial court suspends imposition or execution of sentence, places a defendant on probation, later finds the defendant in violation of probation and orders probation revoked, the court then has three options: (1) reinstate probation on the same or different terms; (2) terminate probation, revoke the stay of execution of sentence, and commit the defendant to prison for the term previously imposed, or (3) terminate probation, and decline to revoke the suspension or to order confinement. (See People v. Howard (1997) 16 Cal.4th 1081, 1087-1088; People v. Medina (2001) 89 Cal.App.4th 318, 319-323.) A denial or grant of probation generally rests within the broad discretion of the trial court. (People v. Downey (2000) 82 Cal.App.4th 899, 909.)
In reliance on People v. Penoli (1996) 46 Cal.App.4th 298, 303, appellant contends the court abdicated its judicial authority in refusing to continue him on probation due to “ ‘standard practice’ ” rather than a “case-specific application” of its sentencing discretion. In particular, appellant points to comments by the court at the July 2, 2007 hearing at which the court refused to reinstate probation. After appellant’s counsel argued in favor of reinstating probation, the court asked whether the parties had considered the alternative of a CRC commitment. The prosecutor asserted that in general, he was not opposed to CRC commitments, but was not sure it was appropriate in this case. Thereafter, in denying probation, the court stated:
“The reason why I’m considering CRC in this case is two reasons. One is, I am firmly going to take the position that when I do suspended execution of sentences as opposed to suspend imposition of sentence, when I do that, I mean what I say, so I don’t do that. I have done that in only three or four cases in the last 11 months because I want people to know I’m serious when a violation happens that I’m not talking to you again. You’re going to prison. [¶] For the same reason I don’t want some other judge second guessing me on my suspended imposition, I’m not going to second guess another judge. [¶] However, I do see -- now, [appellant] has not had a perfect probation, but I do see that he has not reoffended in drug use in the last two years that we know of. I feel he has made some progress in which case I think he might actually be a person who could do well at CRC if he is able to use all the tools that have been given to him. [¶] I’m not interested in another grant of probation. I’m simply not. That is not what I’m going to do.” Appellant then talked about his drug addiction, struggle to maintain his sobriety and fears about CRC.
The People argue appellant waived this issue by failing to object below that the court refused to reinstate probation without the requisite exercise of discretion. Appellant concedes he failed to object on that ground below.
“Claims of error relating to sentences ‘which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner’ are waived on appeal if not first raised in the trial court. [Citation.]” (People v. Brach (2002) 95 Cal.App.4th 571, 577, italics omitted; see also People v. Breazell (2002) 104 Cal.App.4th 298, 304-305.) “ ‘In order to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim.’ ” (People v. Llamas (1998) 67 Cal.App.4th 35, 38, italics omitted.) “Strong policy reasons support this rule: ‘It 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.]’ [Citation.] ‘ “ ‘ “The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.” ’ ” [Citation.]’ [Citation.]” (People v. Stowell (2003) 31 Cal.4th 1107, 1114.)
A “narrow exception” to the waiver rule has been created “for ‘ “unauthorized sentences” or sentences entered in “excess of jurisdiction.” ’ [Citation.] Because these sentences ‘could not lawfully be imposed under any circumstance in the particular case’ [citation], they are reviewable ‘regardless of whether an objection or argument was raised in the trial and/or reviewing court.’ [Citation.]” (People v. Smith (2001) 24 Cal.4th 849, 852.) Appellate intervention is deemed “appropriate in these cases because the errors presented ‘pure questions of law’ [citation], and were ‘ “clear and correctable” independent of any factual issues presented by the record at sentencing.’ [Citation.]” (Ibid.)
Appellant’s challenge to the court’s refusal to reinstate probation does not fall within the exception for sentences that are unauthorized or entered in excess of jurisdiction. His claim is that the court’s refusal to reinstate probation was accomplished in a procedurally flawed manner without the requisite case specific exercise of discretion by the trial court. A failure to object waives any claims based upon lack of proper exercise of sentencing discretion. (People v. Scott (1994) 9 Cal.4th 331, 353; People v. Valtakis (2003) 105 Cal.App.4th 1066, 1072; People v. Blackburn (1999) 72 Cal.App.4th 1520, 1533-1534.) We conclude appellant has waived his claim that the court failed to exercise its discretion in refusing to reinstate probation.
II. No Ineffective Assistance of Counsel Is Demonstrated
In his reply brief, appellant argues that to the extent he waived the issue discussed in part I., above, the waiver was the result of ineffective assistance of counsel. Summarily, he asserts that there is no tactical reason for failing to raise the issue below and ineffective assistance of counsel is established as a matter of law.
“To establish a claim of inadequate assistance, a defendant must show counsel’s representation was ‘deficient’ in that it ‘fell below an objective standard of reasonableness . . . [¶] . . . under prevailing professional norms.’ [Citations.] In addition, a defendant is required to show he or she was prejudiced by counsel’s deficient representation. [Citations.] In determining prejudice, we inquire whether there is a reasonable probability that, but for counsel’s deficiencies, the result would have been more favorable to the defendant. [Citations.]” (People v. Frye (1998) 18 Cal.4th 894, 979.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 215.) Further, “ ‘When . . . the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsel’s reasons. . . . Because the appellate record ordinarily does not show the reasons for defense counsel’s actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, not on appeal.’ [Citation.]” (People v. Lucero (2000) 23 Cal.4th 692, 728-729.)
Based on the record before us, we conclude that defense counsel could have reasonably construed the court’s refusal to grant probation as an exercise of its sentencing discretion. Appellant’s argument does not take into account the fact that prior to refusing to reinstate his probation, the court considered the probation department’s supplemental probation report, defense statement in mitigation, an addendum to the defense statement in mitigation, appellant’s admissions and testimony, and argument by counsel for both parties. Moreover, immediately following the court’s comments about not second guessing another judge, the court expressly weighed the fact that appellant had not “had a perfect probation,” had “not reoffended in drug use in the last two years that we know of,” and had “made some progress in which case I think he might actually be a person who could do well at CRC if he is able to use all the tools that have been given to him. [¶] I’m not interested in another grant of probation. I’m simply not. That is not what I’m going to do.” No ineffective assistance of counsel is shown on appeal.
III. There Was No Abuse of Discretion in Refusing to Reinstate Probation
Finally, appellant contends the decision to refuse to reinstate him on probation was an abuse of discretion.
A court’s refusal to reinstate probation “ ‘will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner.’ [Citation.] A court abuses its discretion ‘whenever the court exceeds the bounds of reason, all of the circumstances being considered.’ [Citation.] We will not interfere with the trial court’s discretion ‘when it has considered all facts bearing on the offense and the defendant to be sentenced.’ [Citation.]” (Downey, supra, 82 Cal.App.4th at pp. 909-910.)
Appellant argues “the trial court effectively delegated judicial authority to Genesis House by accepting [its] decision to terminate appellant from [its] program as sufficient to discontinue appellant’s probation.” He asserts that the court did not receive testimony from anyone at Genesis House with personal knowledge of the circumstances surrounding his termination from the program in violation of his due process right of confrontation. (See People v. Arreola (1994) 7 Cal.4th 1144, 1152-1153.) He also argues that his termination from Genesis House for failing to complete an essay when he was on the verge of completing the program was “too harsh a remedy” and did not justify the court’s refusal to reinstate probation. He concludes that the court’s termination of his probation based on his “technical violation” at Genesis House was arbitrary and capricious.
The People correctly assert that appellant has waived this claim by failing to raise it below. We reject appellant’s summary assertion that defense counsel’s failure to preserve the issue for appeal is the result of ineffective assistance of counsel because there was no tactical reason for failing to raise the issue. We conclude that appellant has failed to demonstrate prejudice. Aside from the Genesis House report, the court’s decision to terminate probation was based on appellant’s own admissions and his prior unsatisfactory history on probation. No ineffective assistance of counsel is shown.
Article III, section 3 of the California Constitution provides: “The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.” Judicial power is vested in the courts whose function is to declare the law and determine the rights of parties in controversy before the court. (Marin Water etc. Co. v. Railroad Com. (1916) 171 Cal. 706, 711-712.)
In support of his position, appellant relies on People v. Cervantes (1984) 154 Cal.App.3d 353 and In re Shawna M. (1993) 19 Cal.App.4th 1686. However, those cases are inapposite. Cervantes held that trial courts cannot delegate absolute power to probation officers to determine the propriety, amount and manner of restitution. (Cervantes, at pp. 356-357.) Shawna M. held that a juvenile court delegated excessive authority regarding parental visitation to a county welfare organization. (Shawna M., at pp. 1690-1691.)
We reject appellant’s assertion that judicial authority was delegated to Genesis House. Appellant cites no authority to the effect that it is improper for a residential drug treatment program to terminate a resident for noncompliance, particularly where the court has previously ordered the defendant placed in that program subject to a “zero tolerance” condition. Moreover, Genesis House did no more than inform appellant’s probation officer that appellant had been terminated from their program prior to successful completion of his treatment and explain the reasons therefor. It was the probation officer who thereafter informed the court of appellant’s termination from the Genesis House program by way of a timely petition to revoke probation. (Pen. Code, § 1203.2, subd. (a).) Once that petition was brought, appellant had the opportunity to challenge the conclusion that he had not successfully completed the program and/or argue that his termination from the program was unreasonable or improper.
Finally, we conclude the court’s determinations that his probation had been violated and should not be reinstated were not an abuse of discretion. The court properly considered the probation officer’s report, which included a report from Genesis House, the probation officer’s testimony, and appellant’s admissions in light of appellant’s prior history on probation. Based on the information before it, the court properly exercised its sentencing discretion and determined that appellant’s probation should not be reinstated, but that he should be sent to CRC.
DISPOSITION
The order is affirmed.
We concur. NEEDHAM, J., DONDERO, J.
Judge of the Superior Court of the City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.