Opinion
G036234
12-5-2006
THE PEOPLE, Plaintiff and Respondent, v. LOUIS MONTES, Defendant and Appellant.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Deputy Senior Assistant Attorney General, Jeffrey J. Koch and Assistant Attorney General, Pamela Ratner Sobeck, Deputy Attorney General, for Plaintiff and Respondent.
Louis Montes appears before the court alleging violations of his constitutional rights of due process and effective representation of counsel at a resentencing hearing following his guilty plea to possession of methamphetamine and a knife while driving with a suspended license. (See Health § Saf. Code, § 11357, subd. (a); Pen. Code, § 12020, subd. (a); Veh. Code, § 14601.1, subd. (a).) Despite multiple opportunities to rehabilitate, including admission into and subsequent termination from the Drug Court Program, Montes insists that the trial court abused its discretion when it refused to continue him on probation after his second probation violation, and instead, sentenced him to the midterm of two years in state prison. He also contends that his trial counsel ineffectively represented him by failing to request the sentencing court to order a diagnostic examination by the California Department of Corrections (CDC). We affirm the judgment.
FACTS
At the time of his guilty plea, the court suspended imposition of the sentence and ordered Montes to 3 years formal probation on the condition that he complete the Drug Court Program. He was informed that the sentence required him to serve 180 days in jail, but that term was stayed pending completion of the Drug Court Program. If successfully completed, the stay would become permanent. He was informed of the requirements for successful completion of the Drug Court Program, and he then signed the plea agreement detailing those requirements, initialing each one. Despite his pledge to adhere to the rules of the Drug Court Program, Montes repeatedly violated those requirements by missing appointments, failing to report to his probation officer, and testing positive for methamphetamine use on numerous occasions. He was terminated from the program on May 14, 2004, and sentenced to 180 days in Orange County Jail.
Montes, in fact, missed his very first appointment at which his initiation into the program was to take place.
Montes was suspected of using water to flush his system in an effort to avoid drug detection via urinalysis twice, and actually tested positive for methamphetamine use a total of three times before he was terminated from the Drug Court Program. He tested positive for drug use merely three months into the program.
After his release, Montes again tested positive for methamphetamine use and his probation was revoked. During this time, his family became concerned at his displays of paranoia, and they contacted his probation officer. She requested that he submit to a mental examination, which he refused. The matter was set for a hearing, and the court, after hearing argument from defense counsel, ordered Montes probation be terminated. The court then sentenced him to prison for two years. It is from this order that Montes appeals.
DISCUSSION
Courts Failure to Request a Diagnostic Examination Sua Sponte
Montes claims that the trial court failed to exercise its discretion when it terminated his probation and sent him to prison. Because the court rejected the recommendations of the probation officer that a diagnostic examination take place, Montes claims that this action amounted to a violation of his constitutional right to due process, as the trial court could not possibly exercise "informed discretion" without the results of a diagnostic evaluation indicating whether he was a danger to society. We disagree.
The question of whether to order a diagnostic evaluation is entirely within the discretion of the trial court. (See Pen. Code, § 1203.03, subd. (a).) As such, the issue of whether the trial court abused its discretion by failing to order the examination was waived by trial counsels failure to raise the challenge below. A complaint that a trial court abused its sentencing discretion or failed to articulate its reasons for the sentence imposed cannot be raised for the first time on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 356-357.) As his counsel failed to object to the courts decision at the time it was made, Montes cannot now claim an abuse occurred as the matter would have been quickly and efficiently remedied if brought to the courts attention with a timely objection.
Penal Code section 1203.03 subd. (a) provides, in pertinent part, "In any case in which a defendant is convicted of an offense punishable by imprisonment in the state prison, the court, if it concludes that a just disposition of the case requires such diagnosis and treatment services as can be provided at a diagnostic facility of the Department of Corrections, may order that defendant be placed temporarily in such a facility . . . ."
" . . . [T]he waiver doctrine should apply to claims involving the trial courts failure to properly make or articulate its discretionary sentencing choices." (People v. Scott, supra, 9 Cal.4th at p. 353.)
Ineffective Assistance Allegation
Montes further argues that his attorneys failure to request the court order a diagnostic examination amounted to ineffective assistance of counsel. He claims that, given the probation officers recommendations of state prison and continued probation should "a diagnostic evaluation [determine Montes] was not a threat to himself or others, reasonably competent counsel would have requested the court to order a diagnostic evaluation." Montes contends that the diagnostic evaluation was the only thing that could remove him from "a fast moving train to state prison." It is clear that not even a diagnostic examination would have stopped that train.
The test for determining whether counsels assistance was, in fact, ineffective, is set forth in Strickland v. Washington (1984) 466 U.S. 668. The analysis is two fold; the first prong requires a defendant to "show that counsels performance was deficient." (Strickland v. Washington, supra, 466 U.S. at p. 687.) The second prong requires that "the defendant must show that the deficient performance prejudiced the defense." (Ibid.) Such a showing requires proof "that counsels errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." (Ibid.)
Analysis of the first prong of Strickland is unnecessary, as Montes fails to overcome the burden of the second prong — that he suffered prejudice as a result of counsels deficiency. There simply is no reasonable probability that the outcome of the hearing would have been different irrespective of the results of a diagnostic examination. In essence, the trial judge had no real option but to send Montes to prison. As indicated in his probation report, Montes refused to adhere to the requirements of probation, and his incarceration in the local jail neither rehabilitated him nor deterred his criminal tendencies. He already had been kicked out of the Drug Court Program, after having been given ample opportunity to succeed. In fact, at the time his participation in the program was terminated, he had racked up nine documented infractions, including missed appointments, attempts to evade drug detection tests, and testing positive for methamphetamine three times. As a result of those infractions, he served a total of 5 weeks in the Orange County Jail, and, after termination of his participation, he served another 180 days. Apparently, Montes never viewed jail as sufficiently undesirable to curb his drug use, because within months of his release, he violated his probation by again testing positive for methamphetamine use. He had refused the help of his family and his more-than-forgiving probation officers. He refused to submit to a mental health examination, and his various actions and declarations to his parole officers made it apparent that he would not willingly participate in any diagnostic examination either. Simply put, Montes was either unwilling or unable to reform himself using the lesser sanctions that were previously imposed. Thus, the trial court ordered the sole remaining option: a state prison term.
DISPOSITION
We affirm the judgment.
We Concur:
RYLAARSDAM, J.
ARONSON, J.