Opinion
H036893
02-09-2012
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL MCNULTY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. SS092141)
Appellant was charged by information with two counts of inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a), counts one and two), one count of making criminal threats (Pen. Code, § 422, count three), one count of dissuading a witness from reporting a crime (Pen. Code, § 136.1, subd. (b)(1), count four), one misdemeanor count of fraudulent use of an access card (Pen. Code, § 484g, subd. (a), count five), and one misdemeanor count of burglary (Pen. Code, § 459, count six).
This is the second time that this case has come to this court on appeal. In the first appeal, we affirmed appellant's judgment of conviction in case number H035616. On August 17, 2011, we granted appellant's motion to take judicial notice of records and files in this previous appeal.
On January 25, 2010, the day set for trial, appellant changed his plea and entered no contest pleas to counts one, two, four, five and six.
At the sentencing hearing, the court imposed but suspended a prison term for counts one, two and four on certain terms and conditions. Specifically, the court imposed the mid-term of four years on count one, four years on count two to be served concurrently, and two years on count four to be served concurrently. As to counts five and six, the court imposed 365 days in county jail on each count to be served concurrently, but not as a condition of probation.
Subsequently, on January 13, 2011, the probation department filed a petition alleging among other things that appellant violated his probation by using marijuana and alcohol on September 5, 2010; by failing to report address changes; driving without a license on December 29, 2010, and consuming alcohol on that date; and by failing to report to probation on December 30, 2010. The court summarily revoked appellant's probation on January 25, 2011.
The petition noted that appellant had signed a statement in which he admitted both the alcohol and marijuana use.
On February 22, 2011, after waiving his right to a formal probation revocation hearing, appellant admitted the two probation violations regarding the use of alcohol and marijuana that had occurred on September 5, 2010. However, his admissions were made on the understanding that the remaining allegations would be dismissed, but could be considered for sentencing purposes.
Thereafter, on April 20, 2011, the trial court imposed the previously suspended prison sentence of four years.
Appellant filed a timely notice of appeal.
On appeal, appellant argues that the trial court abused its discretion when it ordered execution of the previously imposed sentence based on that fact that he "had violated probation, and did so with no meaningful consideration of the available 'sentence choice' between reinstatement of probation and execution of the prison term."
Facts
The facts are taken from the probation officer's report and the transcript from the preliminary examination.
Briefly, we summarize the facts underlying appellant's convictions.
Appellant's live-in girlfriend, Jane Doe, called police on August 24, 2009, to report that earlier that day appellant punched her with a closed fist on her right upper arm, which caused a bruise to form. She had a bruise on her left arm, which she told police was caused by appellant striking her during an argument that occurred a week earlier when appellant grabbed her arm and squeezed it. During the August 24 incident, appellant grabbed Jane by the mouth and told her that if she went to the police and he was sent to prison, he would find her family and then would "bash her head in."
Subsequently, on September 18, 2009, Jane, who had gone to Texas, called police again to say that after she left California, her Master Card account had been used to buy pizza and make a purchase at Banana Republic. Through video surveillance, the police were able to identify appellant as the person using Jane's credit card account.
Discussion
The Sentencing Hearing on the Violation of Probation
Following his admission that he had violated his probation, appellant, both personally and through counsel, argued for reinstatement of probation. Counsel asserted that the probation violations were "minor" in nature and that appellant had not committed any new crimes. Counsel stated that appellant had consistently stayed in touch with his probation officer, and had complied with alcohol and drug testing requirements, which had shown that he was "clean of drugs and alcohol."
Appellant apologized to the court and asked for one more chance. Specifically, appellant said, "But I just want to be able to keep -- give me one more shot to let you see that I do take this extremely seriously and I understand the outset. I understood you to begin with, honestly, I slipped up twice." Thereafter, the following exchange took place:
"THE COURT: Okay. So I'm interested in a little more information than that. When you say you understood me to begin with, what does that mean?
[APPELLANT]: When you told me, you know, this is very serious, Mr. McNulty, and I said yes, sir. And, you know, I completed all my classes. On my birthday I was completely sober almost all day. I had some family from Florida and they said, you know, you can have a drink, do this. And that's what happened, sir. That's the truth of the matter. When I went to probation, I told her."
THE COURT: That's not really answering my question.
[APPELLANT]: Yeah.
THE COURT: What did you understand me to say?
[APPELLANT]: How serious this was.
THE COURT: This serious.
[APPELLANT]: It's extremely serious. This is my life and, you know, . . . it's one slip-up, I'm basically going to jeopardize my freedom and I completely understand that. [¶] And I ask that you just give me one more chance, your Honor, to completely prove that that slip-up will never occur again. I beg of you."
Counsel interjected and said that he had been in contact with appellant's probation officer and the officer had told him that she felt that appellant was a "good candidate for further probation . . . ."
In response, the court made the following statement:
"THE COURT: We're at a stage where we really have to discuss the issue of, really, per the agreement that we had. You talk about you just want one more chance. [¶] I look at this original probation report and it reads - - this is the probation officer's perception. [']His manipulative and convincing personality combined with the seriousness of the crimes he committed and presumptive ineligibility for a grant of probation absent unusual circumstances makes him . . . an inappropriate candidate for probation.['] [¶] I mean there wasn't a question when we were here last, you and me, back in I think it was 2009, early 2010, there wasn't any question you should have gone to prison. [¶] I can't remember our conversation, but I can tell you what I probably told you. And that I believe you understood when I originally told you this, that any violation, no matter how minor, if you do come back here, if you don't keep your probation officer satisfied, they don't need to bring you back to court, you're going to prison. That was my commitment to you. Your commitment back then is give me one more chance. I gave you one more chance. You didn't live up to your commitment, I'm not going to do the same thing. I'm going to live up to my commitment. You need to go to prison now."
The court terminated appellant's probation and imposed the previously suspended prison term.
Appellant seizes on the aforementioned colloquy to argue that Judge Scott made it "abundantly clear that he was uninterested in any argument directed toward reinstatement of probation, and that he was determined to order execution of the previously suspended prison sentence based simply on the fact that [he] had failed to 'live up to [his] commitment' not to violate probation, and had thus violated the 'agreement' which [he] had made with the court. In this circumstances, the court's sentencing order is flawed because there was no such 'agreement' to the effect that any probation violation would, ipso facto, result in a prison term being imposed, and because, even if such an agreement could be implied, the court's automatic imposition of a prison sentence, without regard to the facts and circumstances surrounding the sentence choice between probation and prison, amount to an abdication and abuse of discretion."
A court may revoke probation "if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation . . . ." (Pen.Code, § 1203.2, subd. (a).) The determination of whether to revoke probation is addressed to the sound discretion of the trial court. (People v. Galvan (2007) 155 Cal.App.4th 978, 981-982; People v. Kelly (2007) 154 Cal.App.4th 961, 965 (Kelly).)
Where as here, the initial sentencing court imposed but suspended imposition of a state prison term pending the defendant's successful completion of probation, on a subsequent violation of probation, the court still has discretion to reinstate probation. (People v. Stuckey (2009) 175 Cal.App.4th 898, 916.) On appeal, we will not disturb the trial court's findings absent an abuse of discretion. (Kelly, supra, 154 Cal.App.4th at p. 965.)
At the outset, it is important to note that appellant is not arguing that the trial court was unaware that it had discretion to reinstate probation. Rather, appellant's argument is that the trial "court flatly refus[ed] to consider" reinstatement of probation "on the grounds of the 'prior agreement' the court believed it had with appellant." Appellant asserts that a "review of the record of the first sentencing hearing belies the contention that there was an express or implied agreement, or any promises made by the court and/or appellant, to the effect that any violation of probation would result in execution of the prison sentence." Thus, "this can only be characterized as an arbitrary refusal by the court to exercise discretion, a complete refusal to engage in the required reasoned consideration, based on the facts and applicable law of the proper and just determination in a particular case."
Without doubt, "[a] trial court's failure [or refusal] to exercise discretion is itself an abuse of discretion, and we review such action in accordance with that standard of review. [Citations.]" (In re Marriage of Gray (2007) 155 Cal.App.4th 504, 515.)
Certainly, our review of the transcript of the initial sentencing hearing reveals that there was no express statement by Judge Scott to appellant that if he violated his probation in any way whatsoever he would be going to state prison; nor any agreement by appellant that that would be the case. However, when appellant executed his "WAIVER OF RIGHTS PLEA OF GUILTY/NO CONTEST" form he acknowledged that if he violated "any term or condition of [his] probation," he "[could] be sent to state prison for the maximum term allowed by law. . . ." Appellant initialed the box acknowledging that he understood this advisement and signed the form acknowledging that he had "personally read . . . my entire rights form and signed or initialed each of the appropriate spaces. I understand each and every one of the rights outlined above . . . ." Defense counsel countersigned the form acknowledging "I have witnessed the reading of this form by the defendant and his . . . initialing and signing this form."
Subsequently, at the initial plea hearing, before taking appellant's plea, the court asked appellant if he had read and understood the form. Specifically, the court asked appellant if he had "read and understood each paragraph on this form" and had "indicated that by initialing each paragraph." Appellant replied, "Yes. That is correct, sir."
Thus, even if there was no explicit agreement between the court and appellant, appellant was certainly aware that if he violated "any" term or condition of probation he could be sent to state prison and in essence he "agreed" to that being the case by initialing and signing the waiver of rights form. Nevertheless, there is a fundamental difference between appellant agreeing that if he violated probation he would go to prison and acknowledging that if he violated his probation he could go to prison.
Nevertheless, "[a] party in a criminal case may not, on appeal, raise 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' if the party did not object to the sentence at trial." (People v. Gonzalez (2003) 31 Cal.4th 745, 751 (Gonzalez), citing People v. Scott (1994) 9 Cal.4th 331, 353 (Scott).) The Scott rule of forfeiture applies to cases, such as the present one, where it is asserted that the trial court's stated reasons for its discretionary sentencing choice allegedly do not apply to the particular case. (Gonzalez, supra, 31 Cal.4th at p. 751.)
Here, the non-existent agreement.
The rationale for the rule is elementary: "[C]ounsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the sentencing hearing[, and r]outine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention." (Scott, supra, 9 Cal.4th at p. 353.) As long as there is a meaningful opportunity for counsel to object to purported deficiencies in the trial court's statement of reasons for its sentence choices during the sentencing hearing, counsel's failure to do so forfeits any appellate claim of error. (Id. at p. 356.)
As the California Supreme Court has clarified, a failure to object in the trial court, when necessary to preserve an issue on appeal, results in a forfeiture, not a waiver, although the terms are often used interchangeably. (People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9.)
Appellant argues that there was no opportunity meaningful or otherwise to object in this case. We are not persuaded. There is no indication that defense counsel was precluded from objecting to the court's reason for refusing to reinstate probation immediately after the court stated that reason. The court did not immediately declare a recess after committing appellant to state prison. Rather, the court went on to discuss custody credits and restitution fines. Thus, defense counsel had ample opportunity to raise the issue of the court's reliance on a nonexistent agreement to impose the suspended prison sentence.
In People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, the trial court placed the defendant on probation in the "interests of justice," even though he was presumptively ineligible. (Id. at pp. 1221-1222.) After asking the defendant if he accepted the terms of probation, the trial court immediately declared a recess without hearing from either party. (Id. at pp. 1223-1224.) Since the trial court declared an immediate recess, the Court of Appeal held that "the prosecutor had no opportunity, meaningful or otherwise, to object." (Id. at p. 1225.) Accordingly, the Court of Appeal held that the prosecution could challenge the sentence on appeal. (Ibid.)
Appellant asserts that if we find forfeiture of this issue, his counsel was ineffective in failing to object to the court's erroneous factual premise for the court's decision to impose the previously suspended prison term.
A criminal defendant has a state and federal constitutional right to the effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Pope (1979) 23 Cal.3d 412, 422, disapproved on another point in People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) In order to show ineffective assistance, a defendant has the burden of establishing that: (1) trial counsel's performance fell below prevailing professional standards of reasonableness; and (2) there is a reasonable probability that but for counsel's unprofessional errors, the outcome of the case would have been different. (People v. Ledesma, supra, at pp. 216-218.) A reasonable probability is one " 'sufficient to undermine confidence in the outcome.' " (Id. at p. 218, quoting Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland ).)
Nevertheless, a reviewing court need not assess the two factors of the inquiry in order; and if the record reveals that petitioner suffered no prejudice, we may decide the issue of ineffective assistance of counsel on that basis alone. (Strickland, supra, 466 U.S. at p. 697.) If it is easier to dispose of an ineffective assistance of counsel claim on the ground of lack of sufficient prejudice that course should be followed. (Ibid.)
Furthermore, "[a] defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. 'If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.' [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1003.)
Thus, the standard of appellate review of a claim of ineffective assistance of counsel is well established. " ' "Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of professional assistance.' " [Citation.] "[W]e accord great deference to counsel's tactical decisions" [citation], and we have explained that "courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight" [citation]. "Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts." [Citation.]' [Citation.]" (People v. Stanley (2006) 39 Cal.4th 913, 954.)
We agree with appellant that there can be no tactical reason for counsel's challenged omission. Defense counsel strenuously argued for reinstatement of probation. It appears that what happened is that appellant was represented by a different attorney at the original sentencing hearing, not the attorney that represented him at this hearing.
That being said, there is not a reasonable probability that but for counsel's unprofessional errors, the outcome of the case would have been different. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)
Appellant argues that had the "trial court approached the sentencing proceeding with an open mind, and engaged in a proper exercise of sentencing discretion, there is a reasonable probability that the court would have reinstated probation, perhaps with a requirement of additional jail time if deemed appropriate." Further, appellant asserts that as this court "should be aware from its review of many cases involving probation, it is common for probation to be reinstated where there are minor violations of drug and/or alcohol probation conditions." Moreover, appellant contends that it is "also common that a first violation of probation does not result in a prison sentence." To support his position, appellant cites to In re Taylor (2003) 105 Cal.App.4th 1394, People v. Dagostino (2003) 117 Cal.App.4th 974, People v. Burks (1998) 66 Cal.App.4th 232, People v. Salazar (1994) 29 Cal.App.4th 1550.
We do not find that these cases advance appellant's position. In re Taylor, supra, 105 Cal.App.4th 1394 (Taylor), addressed sentencing a defendant whose two probation violations both postdated the effective date of Proposition 36. (Id. at p. 1396.) In People v. Dagostino, supra, 117 Cal.App.4th 974 (Dagostino), the trial court revoked Proposition 36 probation based in part on the defendant's failure to meet with a mental health "gatekeeper," which, according to the trial court was not a drug-related condition of probation. (Id. at pp. 977, 988.) The gatekeeper's job was to assess defendant's situation in order to refer him to the appropriate drug treatment program. (Id. at p. 992.) On appeal, the Fifth District Appellate Court reversed the revocation of probation by concluding that the failure to meet with the gatekeeper was drug-related. (Ibid.) As the Dagostino court explained, "Since a person cannot be placed in the appropriate drug treatment program without being evaluated, it follows that a drug treatment regimen includes the initial evaluation, and appearing or failing to appear for that evaluation 'thus satisfies the definition of a drug-related condition of probation.' [Citation.]" (Id. at p. 993.)
In contrast to this case, "[a] defendant who is on probation pursuant to Proposition 36 can only have that probation revoked in accordance with the terms of the statutory scheme. [Citations.] For such a defendant, Proposition 36 supersedes the trial court's general power to revoke probation under sections 1203.2 and 1203.3. [Citations.] 'Different rules apply depending on whether a defendant violates a non-drug-related or drug-related condition of probation.' [Citation.] [¶] 'Anticipating that drug abusers often initially falter in their recovery, Proposition 36 gives offenders several chances at probation before permitting a court to impose jail time. The first time an offender violates a drug-related condition of probation, he is entitled to be returned to probation unless he poses a danger to others. [Citation.] The second time he violates a drug-related condition of probation, he is entitled to be returned to probation unless he poses a danger to others or is unamenable to treatment. [Citation.] Only upon a third violation of a drug-related condition of probation does an offender lose the benefit of Proposition 36's directive for treatment instead of incarceration. [Citation.] Upon such a violation, the court regains its discretion to impose jail or prison time. [Citation.] Proposition 36 does not, however, extend the same grace to probationers who violate non-drug-related conditions of probation. The first time a probationer violates such a condition, the court has discretion to incarcerate the person. [Citation]' [Citation.]" (Dagostino, supra, 117 Cal.App.4th at p. 987-988.)
In People v. Burks, supra, 66 Cal.App.4th 232 (Burks), the defendant was originally placed on probation after pleading no contest to a felony charge of stalking. He served one year in county jail as a condition of the grant of probation. After his first violation, he waived credit for the year he had served and was sentenced to an additional 90 days in county jail as a condition of reinstatement of probation. After a second violation, the court reinstated probation without imposing any additional jail time. Upon his third violation, probation was revoked and the defendant sentenced to state prison for three years. He appealed his sentence, contending he was entitled to the credit for time served that he waived when he was sentenced after his first probation violation. Since the sentencing court failed to advise him that his waiver would apply to a future prison term as well as to his county jail time, the defendant claimed his waiver was not knowing and intelligent. (Id. at p. 234.) Nevertheless, as the Burks court explained, the question before the court was "whether a defendant who is sent to prison after yet another probation violation may regain his waived credits by asserting he did not understand that his credit waiver would apply to a future prison term." (Id. at p. 235.)
There is no indication in Burks as to how the defendant violated his probation. (Burks, supra, at p. 234.)
In People v. Salazar, supra, 29 Cal.App.4th 1550 (Salazar), the defendant pleaded guilty to one count of sale of cocaine (Health & Saf.Code, § 11352). (Id. at p. 1552.) The trial court suspended his sentence and placed him on three years of probation conditioned upon his service of one year in county jail. The defendant violated probation twice and each time probation was revoked and reinstated on the condition that he waive credits and serve additional time in county jail. The order on the second violation stated that the defendant waived all prior credits for "all purposes." Following the revocation of the defendant's probation after a third violation, the court sentenced appellant to five years in state prison. The court gave the defendant credit for all time served in county jail after the date of the second waiver of credits. He appealed, contending that when he waived credits in connection with the second probation violation, he did not knowingly and intelligently waive credits against a future prison sentence. Division One of the First District Court of Appeal disagreed and affirmed. (Id. at pp. 1552-1553.)
Neither in Burks nor in Salazar is there any indication as to how the defendants in those cases violated their probation. (Burks, supra, at p. 234; Salazar, supra, at p. 1552.) Further, there is nothing in either Burks or Salazar to support the conclusion that when as here a defendant commits, what appellant characterizes as "minor" probation violations it is reasonably probable that probation would be reinstated if a court engages in a proper exercise of sentencing discretion.
We remind appellant, " 'Probation is a form of leniency which is predicated on the notion that a defendant, by proving his ability to comply with the requirements of the law and certain special conditions imposed upon him, may avoid the more severe sanctions justified by his criminal behavior. Once given the opportunity for lenient treatment the choice is his as to whether he merits being continued on probation.' [Citation.]" (Burks, supra, 66 Cal.App.4th at p. 237.) Any violation of probation can be serious depending on the circumstances of the individual case.
In contrast to Taylor and Dagostino, in this case appellant was not on Proposition 36 probation. Rather, he was on probation for domestic violence related offenses and theft offenses. Further, although this was the first time he violated his probation in this particular case, it was not his first time violating a grant of probation. As the probation officer's report prepared for the initial sentencing hearing relates, while appellant resided in Florida he suffered three separate felony convictions and failed to successfully complete his grants of probation. Moreover, again, as the probation officer's report notes, appellant was on felony probation in case SS081618A for a prior domestic violence incident against Jane Doe when he committed the offenses in this case. In addition, at the outset appellant was presumptively ineligible for probation due to his three prior felony convictions (Pen. Code, § 1203, subd. (e)(4)). Given this history, appellant's demonstrated complete disregard for the lenient manner in which the trial court decided to exercise discretion initially in this case, and his complete failure to comply with the requirements of the law and the probation conditions imposed upon him, there is very little likelihood, let alone a reasonable probability, that the trial court would have reinstated probation even if it had engaged in a proper exercise of sentencing discretion.
Although appellant admitted only two probation violations (the use of alcohol and marijuana) the other violations that were dismissed can be considered in determining whether there is a reasonable probability that the trial court would have reinstated appellant's probation in the proper exercise of its sentencing discretion.
Accordingly, we find no merit in appellant's claim that he received ineffective assistance of counsel.
Disposition
The judgment is affirmed.
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ELIA, J.
WE CONCUR:
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RUSHING, P. J.
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Judge of the Superior Court of Santa Clara County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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