Opinion
C089210
02-25-2020
THE PEOPLE, Plaintiff and Respondent, v. ROBERT DENNIS RAMIREZ, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CH035296)
Defendant Robert Dennis Ramirez pleaded guilty to conspiracy to introduce a controlled substance into a state prison. He contends the trial court abused its discretion by imposing the upper term sentence, and his trial counsel provided ineffective assistance by failing to object to the sentence. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Between February 22, 2017, and April 28, 2017, defendant engaged in several telephone calls with inmates at High Desert State Prison. In those calls, defendant agreed to deliver a specific amount of heroin to an address no later than April 25, 2017, in exchange for payment. In the calls, one inmate indicated that the heroin should be delivered to another inmate's wife. On April 28, 2017, the identified wife attempted to visit her husband at High Desert State Prison. Correctional officers searched her and seized approximately three ounces of heroin.
Defendant pleaded guilty to a single count of conspiracy to introduce a controlled substance into a state prison. (Pen. Code, §§ 182, subd. (a)(1), 4573.) During sentencing, defense counsel argued for a term of probation or a split sentence; the trial court instead imposed an upper term prison sentence. In particular, the court noted that defendant had two prior state convictions and a prior federal conviction (including for drug offenses) and that he was currently on probation. The court also expressed concern at the large quantity of heroin at issue, as well as the fact that defendant did not appear to have done well on probation. The court found there were no mitigating factors.
DISCUSSION
Defendant contends the trial court abused its discretion by imposing the upper term, in that it: (1) erred in concluding that the amount of contraband at issue was "large"; (2) incorrectly determined that defendant's prior convictions were of increasing seriousness; (3) counted both defendant's prior prison term and current probation term as independent aggravating factors even though they originated from the same prior case; and (4) discounted potential mitigating factors without sufficient rationale. Defendant adds that the issue is not forfeited because counsel's failure to object to the upper term constituted ineffective assistance of counsel.
A trial court's decision to impose the upper term is subject to review for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) A trial court abuses its discretion only if it "relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision." (Ibid.) An upper term sentence may be based upon "any aggravating circumstance that the court deems significant" and " 'reasonably related to the decision being made.' " (Id. at p. 848, quoting Cal. Rules of Court, rule 4.408(a).) " 'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
Defendant asserts that the contraband at issue was not "large" because the trial court noted at the sentencing hearing that the amount was "not atypical" and "in that ball park" for similar cases. But even one-half ounce of heroin can constitute a "large" amount of contraband for sentencing purposes, and the three ounces in this case far exceeds that amount. (People v. Maese (1980) 105 Cal.App.3d 710, 725.) Likewise, a quantity can be both "large" and "not atypical"; it may simply be that inmates routinely attempt to smuggle large amounts of contraband into prison.
Nor was it an abuse of discretion to find that defendant's prior convictions are of increasing seriousness. Even excluding defendant's juvenile convictions, as the trial court appears to have done, it was reasonable for the court to have determined that the current offense, conspiracy to introduce a controlled substance into a state prison, is more serious than defendant's prior offenses, which include, among others, possession for sale of a controlled substance. (Health & Saf. Code, § 11378.) As the court noted, introduction of three ounces of heroin into a state prison creates a great risk of danger for both inmates and correctional staff. Mere possession for sale, absent a prison context, may not pose the same danger.
Defendant also argues that it was error to count his prior prison term and his current probation term as separate aggravating factors because they resulted from the same prior case. But it makes no difference whether the prior case is counted as one factor or as two factors because even a "single valid factor in aggravation is sufficient to justify the imposition of the upper term." (People v. Forster (1994) 29 Cal.App.4th 1746, 1758.) And, as the People point out, having a prior prison term and violating a probation term is, in fact, more serious than one or the other, standing alone.
Without citing the record, defendant contends he played a passive role in the crime and was induced by others to participate. We find no error in the trial court's conclusion that there were no mitigating factors. The court considered defendant's role and actions in the conspiracy. Moreover, in any case, the "trial court may 'minimize or even entirely disregard mitigating factors without stating its reasons.' " (People v. Lai (2006) 138 Cal.App.4th 1227, 1258.) We see no abuse of discretion here.
Finally, defendant claims that he received ineffective assistance of counsel because his trial counsel failed to object during the sentencing hearing to the trial court's examination of the aggravating and mitigating factors. Because the trial court's consideration of defendant's various circumstances was sufficient, however, counsel's failure to object did not fall "below an objective standard of reasonableness under prevailing professional norms." (People v. Mai (2013) 57 Cal.4th 986, 1009.) We see no ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Robie, Acting P. J. /s/_________
Krause, J.