Opinion
H025064.
10-30-2003
THE PEOPLE, Plaintiff and Respondent, v. ANGEL VILLESCAZ NEVAREZ, Defendant and Appellant.
I. Statement of the Case
In 2001, defendant Angel Villescaz Nevarez pleaded no contest to assault with a deadly weapon. The court suspended imposition of sentence and placed him on probation for three years. In September 2002, the trial court revoked probation, finding that defendant had violated the conditions of probation by (1) committing an act of indecent exposure, (2) suffering misdemeanor convictions for public drunkenness, possession of drug paraphernalia, loitering and trespassing, and (3) failing to pay his restitution fine. The court then sentenced defendant to a term of three years for the assault.
On appeal from the judgment, defendant claims the matter must be remanded because the court intended to impose the mitigated term of two years rather than the middle term of three years.
We disagree and affirm the judgment.
II. Background
Given defendants claim on appeal, we need not summarize the facts concerning the assault with a deadly weapon or the probation violations.
In connection with the revocation hearing, Gary Giarretto, defendants probation officer, informed the court that although defendant had an extensive criminal record, most of his offenses were drug-related. He further noted that defendant is a serious addict with diagnosed mental conditions, including bi-polar and schizo-affective disorders. Giarretto pointed out that as a condition of probation, defendant was required to complete an Intensive Alternative Program (IAP). Under the IAP, defendant entered the Jacob Center. He was clean and sober for two months but then had an argument with staff and left. He lived on the streets, stopped taking his medication, and started drinking again. During this time, defendant accumulated a number of misdemeanor convictions. Given these circumstances, Giarretto recommended continued probation and placement in a residential treatment program, where defendant could get intensive treatment and help managing his mental health issues.
An Intensive Alternative Program is a jail reduction program for people with mental illnesses, in which prisoners are released from jail early and placed with mental health service providers, where they receive treatment and therapy.
At the hearing, defendant explained that he is a manic-depressive, who experiences euphoric exhilaration one moment and uncontrollable depression the next. He said he takes a number of medications to control his condition. Defendant admitted having problems with drugs and alcohol. Although he could not promise anything, he said that if he were continued on probation, he would take his medication and go to Alcoholic Anonymous meetings and abide by the conditions of probation. Defendant admitted that he has been on probation a few times but had always returned to drugs and alcohol.
The prosecutor argued that defendants past conduct, performance on probation, and testimony indicated that he could not be adequately supervised on probation. Moreover, his prior conduct, which included acts of violence, indecent exposure, and drug abuse, indicated that he is a danger to the community and, therefore, not an appropriate candidate for continued probation. Under the circumstances, the prosecutor urged the court to deny probation and impose a three-year term for the underlying assault conviction.
Defense counsel argued that defendants mental illness was a substantial mitigating factor and cause of his substance abuse. Counsel noted that defendants only violent act was the assault, for which he was granted probation. Counsel urged the court to continue defendant on probation.
The trial court declined to continue defendant on probation. It noted that despite intensive services and supervision by the probation department, defendant had failed probation and probably would fail again. In selecting the appropriate sentence, the court first looked at aggravating circumstances. It reviewed defendants criminal record and noted that he had engaged in serious offenses, fights with the police, and the underlying assault. Nevertheless, the court stated, "Im unwilling to, however, give you the aggravated sentence because I do find that the mitigation that [defense counsel] had pointed out. The fact that you do have an addiction problem that youre not handling well, and you do have the mental health issue." The court continued, "So Im going to select the mitigated term and revoke your probation and commit you to the California Department of Corrections for three years." (Italics added.)
After learning that defendant had 570 days of custody credit, the court stated, "Im going to commit you for three years, which means youre going to end up spending about roughly nine or 10 months in state prison, assuming you get your good-time credits and your work-time credits."
III. Discussion
Defendant notes that the court said it was selecting the mitigated term for the assault but proceeded to impose a three-year middle term. The mitigated term for assault is two years. (Pen. Code, § 245, subd. (a)(1).) According to defendant, the trial courts misunderstanding concerning the length of the mitigated term compels a remand because, he argues, it is reasonably probable the court would have imposed the two-year term in the absence of it misunderstanding. We disagree.
The People argue that defendant waived his claim by failing to object at sentencing. Defendant counters that if defense counsel waived the claim, then counsel failed to provide effective assistance, and the omission compels reversal because there is a reasonable probability the court would, on remand, impose the lower, mitigated term.
Whether we address defendants claim on the merits directly or indirectly via a claim of ineffective assistance of counsel, we reach the same conclusion.
In actually imposing a three-year middle term, the court implicitly found that the aggravating and mitigating circumstances were balanced. (See Pen. Code, § 1170, subd. (b) [middle term where neither aggravating or mitigating circumstances predominate].) Indeed, the court cited defendants addiction and mental health problems to explain why it was not going to impose an aggravated term. In other words there were mitigating circumstances that counterbalanced the aggravating circumstances—e.g., that defendant used a weapon, had previously been on probation, and has a record that includes fighting and battery. (See Cal. Rules of Court, rule 4.421, subds. (a)(2), (b)(1) & (5).) Moreover, the courts specific references to the three-year sentence and its calculation that defendant could be eligible for parole in nine or 10 months confirm that it considered the appropriate sentence to be three years. Thus, the record establishes that the courts selection of the three-year term, not its misnomer for that term, was the operative act in its sentencing determination. In our view, the court simply misspoke in describing the term as the mitigated term.
We observe that relative to an aggravated term, the middle term is mitigated.
Under the circumstances, a remand is not necessary or appropriate. Even if the court had not misdescribed the three-year term, we do not find it reasonably probable (see People v. Watson (1956) 46 Cal.2d 818, 836) nor do we find a reasonable probability (see Strickland v. Washington (1984) 466 U.S. 668, 687-688) that defendant would have received a two-year term absent the courts misdescription.
IV. Disposition
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Mihara, J.