Opinion
C057131
9-5-2008
THE PEOPLE, Plaintiff and Respondent, v. TONY EDWARD WASHINGTON, JR., Defendant and Appellant.
Not to be Published
Defendant Tony Edward Washington appeals from the sentence imposed following his pleas of no contest to assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1)) and misdemeanor statutory rape (§ 261.5, subd. (c)) and his admission of a violation of probation. He contends the trial court abused its discretion in sentencing him to the upper term on the assault charge by utilizing an improper aggravating factor and erred in determining factors in mitigation. Defendant also contends the trial court violated his rights under Cunningham v. California (2007) 549 U.S. 270 by imposing the upper term on a finding that his prior convictions were numerous and of increasing seriousness. We shall affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In the early morning hours of January 3, 2007, defendant and two of his friends were tired of walking. Conveniently, they came across a 1979 Mercedes Benz with its doors open and a key in the ignition, so they "jumped in[] . . . and drove away." As a result, defendant was charged with unlawful driving or taking a vehicle. (Veh. Code, § 10851, subd. (a).) He pled no contest to this charge. Imposition of sentence was suspended and defendant was placed on three years probation, conditioned on serving 100 days in county jail.
On another early morning in April 2007, two 16-year-old girls sneaked out of their house to meet with defendant and some of his friends. Defendant had sexual intercourse with one of the girls.
Then on May 13, 2007, again in the early morning hours, defendant and some friends assaulted a transient who was collecting aluminum cans. They punched and kicked him all over his body and dragged him across the ground. One of defendants friends videotaped the assault.
On May 15, 2007, a petition for violation of probation was filed, alleging defendant had committed an assault in violation of the terms of his probation. The following day, a felony complaint was filed alleging defendant had committed an assault by means of force likely to produce great bodily injury.
On July 12, 2007, defendant pled no contest to the assault charge and to a misdemeanor charge of statutory rape. He also admitted the violation of probation connected to the prior auto theft conviction.
At the sentencing hearing, defendant argued for probation. The court denied defendants request for probation. Defendant was sentenced to the upper term of four years on the assault as the principal term, a consecutive eight months on the auto theft, which represented one-third the midterm sentence, and a concurrent one year on the misdemeanor statutory rape. In selecting the upper term on the assault, the court found "circumstances in aggravation outweigh the circumstances in mitigation in that the crime involved great bodily injury or a threat of great bodily injury, that the defendant now has priors that are numerous, that the defendant was on probation when the offense occurred, and that the defendants prior performance on probation was unsatisfactory. The court did not find any circumstances in mitigation other than that the defendant claimed he was on Ecstasy."
DISCUSSION
I
Defendant contends on appeal that the court abused its discretion in imposing the upper term. Specifically, defendant argues that the court improperly considered the threat of great bodily injury as an aggravating factor, because it was also an element of the offense; the court improperly considered defendants "now numerous prior convictions," because he had only a single prior conviction in his record; and, the court abused its discretion in failing to find mitigating factors, including that he had an insignificant prior record and his admission of guilt came early in the proceedings.
As the Attorney General correctly argues, defendant has forfeited this claim by failing to object at the sentencing hearing, despite the opportunity to do so. This rule of forfeiture applies to a trial courts failure to properly make or articulate its discretionary sentencing choices, including cases "in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (People v. Scott (1994) 9 Cal.4th 331, 353.)
Anticipating this result, defendant alternatively argues if we find the claim forfeited, then defense counsel was ineffective for failing to object. Based on this record, such an objection would not have yielded a more favorable result. Accordingly, defendants ineffective assistance of counsel claim must fail. (People v. Foster (1993) 14 Cal.App.4th 939, 944, quoting People v. Lewis (1990) 50 Cal.3d 262, 288 [to prevail on ineffective assistance claim defendant must show "it is reasonably probable that a more favorable determination would have resulted in the absence of counsels failings"].)
In order to find that defendant suffered prejudicial ineffective assistance of counsel, defendant must show (1) counsels performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and (2) absent counsels error, it is reasonably probable that the result would have been more favorable to him. (Strickland v. Washington (1984) 466 U.S. 668 .)
With respect to the first prong of this test, "[c]ounsels duty at sentencing is to be familiar with the sentencing alternatives available to the court, to make sure that the court is aware of such alternatives, to explain to his or her client the consequences of the various dispositions available and to be certain that the sentence imposed is based on complete and accurate information. [Citations.]" (People v. Cotton (1991) 230 Cal.App.3d 1072, 1085-1086.)
Here, the record reveals that the court read and considered the probation reports from both the auto theft and the assault cases, and the sentencing statements from both defense counsel and the People. The sentencing statement from defense counsel delineates factors in mitigation and counsel expounded on those in argument at the hearing. The sentencing statement also included a number of declarations from friends and family of defendant attesting to defendants youth and general good character. The court also allowed the parties further argument in court. The record reveals that counsel complied with his duty at sentencing to be familiar with the sentencing alternatives, to ensure the court was aware of those alternatives and to ensure the sentence was based on complete and accurate information.
As to the second prong in establishing ineffective assistance of counsel, defendants burden is to establish that he would have received a lesser sentence not as a matter of speculation but as a matter of demonstrable reality. (People v. Reeves (1966) 64 Cal.2d 766, 774.) On the record before us, there is no indication that even if counsel had made the objections defendant proposes that the court would have either granted defendant probation or sentenced him to a middle or lower term sentence. Rather, the record suggests the contrary.
There is no merit in defendants claim that the court erred in its determination of factors in mitigation. Having considered the evidence, the probation reports, and the arguments and authorities submitted by both parties, the court was not required to articulate why it was unconvinced by the purported mitigating factors. (People v. Zamora (1991) 230 Cal.App.3d 1627, 1637.) That the court did not comment on each alleged factor in mitigation does not mean the court ignored those factors. To the contrary, we presume the judge considered all the relevant mitigating circumstances. (Ibid.)
Furthermore, we do not find any error in the courts determination. It is true defendant was young when he committed these offenses and his only prior conviction was the auto theft conviction. However, the recency and seriousness of defendants spate of criminal conduct was sufficient to take defendant outside the ambit of California Rules of Court, rule 4.423(b)(1), finding defendant has an insignificant record of criminal conduct. Defendant committed his first offense on January 3, 2007. He was sentenced to probation in that matter in March, 2007. Four months after his first offense and only one month after he was placed on probation, he committed a statutory rape. One month after his second offense, and only two days after his probation indoctrination, defendant assaulted the transient and had it videotaped. This is not an insignificant record of criminal conduct.
Defendants claim that he voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process is similarly unavailing. Upon initially being contacted by officers regarding the assault, defendant refused to speak with officers. There is no indication in this record that he voluntarily acknowledged wrongdoing prior to the entry of his plea, some two months after his arrest. Combined with the courts finding that defendant was not remorseful, we cannot say the court erred.
As to the aggravating factors, even assuming the court improperly found great bodily injury, improperly relied on the threat of great bodily injury and improperly believed defendant had numerous convictions prior to his assault conviction, defendant was on probation at the time he committed the assault and his convictions for sexual assault and assault likely to cause great bodily injury amply demonstrated his performance on probation had been unsatisfactory. These factors are sufficient alone to support the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.)
Furthermore, the record does not suggest that even with an objection the court would have lessened defendants sentence. The court denied probation for the following reasons: if defendant was "not in prison the defendant will be a danger to others, the nature and seriousness and circumstances of the crimes, the defendant inflicted bodily injury. The defendant planned and was an active participant in the crimes. The defendant does not appear to be remorseful. The defendants prior record of criminal conduct now indicates a pattern of regular and increasingly serious criminal conduct. The defendants prior performance on probation was unsuccessful. The defendant has been tried on probation . . . and has failed." Considering these findings in conjunction with those properly made findings in aggravation, it is not reasonably probable that even if counsel had objected to any alleged errors in the courts statement the court would have imposed a different sentence.
Sentencing courts have wide discretion in weighing aggravating and mitigating factors and may balance them against each other in qualitative as well as quantitative terms. (People v. Lamb (1988) 206 Cal.App.3d 397.) When a trial court recites both proper and improper reasons for its sentence choice, the sentence will be set aside only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. (People v. Cruz (1995) 38 Cal.App.4th 427, 433-434.) Here, there is no reasonable probability the court would have imposed a lesser sentence had it known that any of the factors upon which it relied were improper. Accordingly, any failure to object was not ineffective assistance of counsel.
II
Defendant next contends the trial court violated the proscriptions of Cunningham v. California, supra, 549 U.S. 270 by imposing the upper term sentence.
In a case decided after briefing was completed in this case, the California Supreme Court held in People v. Towne 44 Cal.4th 63 (2008) (Towne), that there is "no reason why the high courts recognition of an exception to the right to jury trial on prior conviction allegations should not encompass the circumstances that the defendant served a prior prison term or committed an offense while on probation or parole." (Towne, supra, 44 Cal.4th 63, 81-82.) As we are bound by the decision in Towne, we must reject defendants claim. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The trial court imposed the upper term because the crime involved a threat of great bodily injury, the defendant now has numerous priors, he was on probation when the offense was committed and his performance on probation was unsatisfactory.
"In determining whether the offense was committed while the defendant was on probation or parole, the trial court is not required to make any factual finding regarding the charged offense. It need only determine the period during which the defendant was on probation or parole and compare those dates to the date of the charged offense, as found by the jury. The trial court may find this aggravating circumstance to exist, without engaging in any fact-finding regarding the charged offense. Accordingly, a trial courts conclusion that the charged offense was committed while the defendant was on probation or parole, like a finding of a prior conviction, does not require judicial fact-finding regarding the charged offense." (Towne, supra, 44 Cal.4th 63, 80-81.)
Here, the record established defendant had sustained a prior conviction for auto theft. He was on probation for that offense at the time he committed the statutory rape and the assault. The record clearly reflects defendant was on probation at the time he committed the current offense and that his probation was violated based on his conviction in the current case. That is, based on his committing the current offenses while on probation.
"When a defendants prior unsatisfactory performance on probation or parole is established by his or her record of prior convictions, it seems beyond debate that the aggravating circumstance is included within the Almendarez-Torres exception and that the right to a jury trial does not apply." (Towne, supra, 44 Cal.4th 63, 80.) Here, the defendants probation was violated specifically as a result of his conviction in the current case. Thus, "[t]he mere recitation of [defendants] dates of conviction and releases on [probation] demonstrate, as a matter of law, that he committed new offenses while on [probation]. Thus he performed poorly on [probation]. [Citation.] No trial court or jury could rationally find otherwise. As a result, these factors fall within the Apprendi exception to the jury trial right. The trial court did not violate [defendant]s Sixth Amendment rights by imposing the upper term without these findings by a jury." (People v. Yim (2007) 152 Cal.App.4th 366, 371.)
Because defendants commission of a crime while on probation is a circumstance arising from the fact of his prior conviction, it falls within the recidivism exception to Cunningham. Therefore, the courts additional factfinding did not violate defendants right to a jury trial. (People v. Black (2007) 41 Cal.4th 799, 812.) Accordingly, the court did not err in imposing the upper term.
DISPOSITION
The judgment is affirmed.
We concur:
DAVIS, J.
RAYE, J. --------------- Notes: Undesignated statutory references are to the Penal Code. 2. These facts are taken from the probation reports. 3. Almendarez-Torres v. United States (1998) 523 U.S. 224, 350. Apprendi v. New Jersey (2000) 530 U.S. 466 435.