Opinion
E068823
12-04-2018
THE PEOPLE, Plaintiff and Respondent, v. STEVEN MICHAEL WELCH, Defendant and Appellant.
Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Meredith White and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. 16CR015487) OPINION APPEAL from the Superior Court of San Bernardino County. Corey G. Lee, Judge. Affirmed. Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Meredith White and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Steven Michael Welch pled no contest to felony vandalism (Pen. Code, § 594, subd. (b)(1)). In return, the trial court suspended imposition of sentence, and placed defendant on formal probation for a period of three years on various terms and conditions of probation. Defendant subsequently violated the terms and conditions of his probation. After the trial court found defendant in violation of his probationary terms, the court revoked defendant's probation and sentenced him to an upper term of three years in county prison with credit for time served. On appeal, defendant contends his trial counsel was ineffective for failing to object to the trial court's imposition of the upper term. We find no error and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background of the underlying offense is taken from the probation and police reports. --------
On March 29, 2016, defendant broke a window on the side of a Victor Valley Transit bus, because he was angry that his bike had been stolen from the front of the bus. The estimated damage was over $500.
On April 25, 2016, a felony complaint was filed charging defendant with one count of felony vandalism (§ 594, subd. (b)(1)).
On August 25, 2016, pursuant to a negotiated plea agreement, defendant pled no contest to the vandalism charge. In return, the People dismissed all other pending cases against defendant except one misdemeanor case. In addition, the trial court suspended imposition of sentence and placed defendant on formal probation for a period of three years on various terms and conditions of probation, including serving 180 days in county jail.
On September 22, 2016, defendant was cite-released for committing a new offense, specifically under the influence of a controlled substance. After defendant's release from custody, he did not report to probation.
On September 27, 2016, a probation compliance check was conducted at defendant's reported address. The probation officer contacted the homeowner, who reported that he did not know defendant and that defendant did not reside there. As of November 2016, defendant had failed to report his new address.
On October 3, 2016, a petition to revoke defendant's probation was filed.
On December 1, 2016, the trial court conducted a probation violation hearing. Following the hearing, the court found defendant had violated the terms and conditions of his probation by failing to report to his probation officer and failing to keep his probation officer informed of his residence. The court then reinstated defendant on probation under the original terms and conditions with the modification that defendant serve 365 days in county jail.
After being released from county jail, on March 7, 2017, defendant reported to the Victorville probation office and spoke with a probation officer. At that time, defendant reported a new address in the city of Hesperia. However, he had not obtained his grandmother's permission to reside at that address. Therefore, defendant was directed to report the next day if his grandmother was going to allow him to live at her address in the city of Hesperia. Defendant was directed to report on April 3, 2017, between 8:00 a.m. and 10:00 a.m., to see his assigned probation officer. A phone call was also made and a message left for defendant to report to probation as directed.
On March 28, 2017, a probation compliance check was conducted at defendant's reported address in the city of Hesperia. Upon contacting defendant's grandmother, the probation officer learned that defendant was no longer residing at her address and that defendant's grandmother had asked defendant to move out due to his disrespectful attitude toward her.
On May 5, 2017, a petition to revoke defendant's probation was filed alleging that defendant had violated the terms and conditions of his probation by violating the law, failing to cooperate and follow the reasonable directives of his probation officer, failing to keep his probation officer informed of his place of residence, and failing to report to probation as directed.
On May 16, 2017, the trial court revoked defendant's probation and set a probation revocation hearing.
A probation revocation hearing was held on July 13, 2017. At that time, defendant's grandmother, a deputy, and defendant's probation officer testified. Defendant's grandmother stated that on March 20, 2017, after she and defendant got into an intense argument while driving to her home, she dropped defendant off at her house in the city of Hesperia, and then left because she was still angry. When she returned home, she saw that her garage door had been damaged. It cost defendant's grandmother approximately $100 to repair the damage.
San Bernardino County Sheriff's Deputy Kevin Pope testified that he had contacted defendant after the garage door incident at defendant's grandmother's house. Defendant initially told the deputy that he did not know who had damaged the garage door, but then admitted that he had kicked it.
Defendant's probation officer testified that she had conducted a probation compliance check at defendant's grandmother's house and learned that defendant was no longer residing there. Defendant's probation officer also explained that defendant's probationary terms and conditions included informing his probation officer of his place of residence and giving a 24-hour notice prior to changing his residence.
Following argument, the trial court found defendant violated his probation by failing to keep his probation officer informed of his place of residence, and for violating the law. The court then proceeded to sentencing. Defendant's trial counsel argued that the court should impose the middle term of two years rather than the upper term, noting the misdemeanor vandalism cost less than $100 to fix and that defendant had not been convicted on that offense. Defense counsel also noted that defendant's failure to report was for a short amount of time. The prosecutor requested that the court impose the aggravated term of three years, arguing defendant was on felony probation for vandalism and, while he was on probation for vandalism, he had committed another vandalism offense. The court thereafter stated, "Well, let me ask you if it's a mid-term what would be the calculated time for that?" The prosecutor responded "two." The court then inquired, "What would be the release date?" The prosecutor stated 145 days with presentence credits. Defense counsel agreed, noting defendant had a total of 437 days of presentence custody credits.
The probation officer also prepared a report for the hearing. The probation report detailed specifics of the original offense, and listed as an aggravating circumstance that defendant had "prior convictions as an adult, and sustained petitions in juvenile delinquency proceedings are numerous and of increasing seriousness." Defendant's criminal history dated back to 2008 and included at least three prior vandalism convictions, as well as, convictions for commercial burglary, grand larceny, battery, possession of a controlled substance, unlawful possession of burglary tools, and trespassing. There were no mitigating circumstances. The probation officer recommended that defendant's probation remain revoked, and that defendant be sentenced to the aggravated term of three years.
The trial court sentenced defendant to an aggravated, split-term sentence of two years six months in county jail and six months on mandatory supervision under various terms and conditions. Defendant was awarded 437 days of credit for time served. In making its findings, the court stated: "I'm looking at his history and it looks likes [sic] there were repeated violations and this is of the same nature so I am going to give the aggravated sentence. Probation to remain revoked, pronouncement of judgment previously withheld will now be pronounced. Defendant . . . is sentenced under the provisions of Penal Code [section] 1170[, subdivision ](H)(5)(B) to the San Bernardino County Jail for the aggravated term of three years for the offense of [felony] vandalism . . . ."
III
DISCUSSION
Defendant contends that he was denied effective assistance of counsel when his counsel failed to object to the trial court's imposition of the upper term. Specifically, he asserts that his counsel should have objected when the court based its decision on his release date and "the fact that he committed vandalism while on probation for vandalism."
Preliminarily, the waiver/forfeiture doctrine applies to claims that a trial court failed to properly make or articulate its discretionary sentencing choices. (People v. Scott (1994) 9 Cal.4th 331, 353; People v. Kelley (1997) 52 Cal.App.4th 568, 582.) "Ordinarily, an appellate court will not consider a claim of error if an objection could have been, but was not, made in the lower court. [Citation.] The reason for this rule is that '[i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided.' [Citations.]" (People v. French (2008) 43 Cal.4th 36, 46.) Here, defendant did not object to the trial court's purported reliance on his probation performance as an aggravating factor, and therefore forfeited the objection. Nevertheless, because he contends his counsel was ineffective for failing to raise the issue below, we consider the merits of the claim.
In order to find that defendant suffered prejudicial ineffective assistance of counsel, defendant must show (1) counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and (2) absent counsel's error, it is reasonably probable that the result would have been more favorable to him. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Thompson (2010) 49 Cal.4th 79, 122.) "[R]arely will an appellate record establish ineffective assistance of counsel." (Thompson, at p. 122.) If the record sheds no light on counsel's actions, the claim must be rejected unless no satisfactory explanation exists or counsel was asked for an explanation and failed to provide one. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
With respect to the first prong of this test, "[c]ounsel's 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.) As to the second prong in establishing ineffective assistance of counsel, defendant's 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.
California Rules of Court, rule 4.435(b)(1) provides in pertinent part that when a court imposes sentence after revoking probation, "[t]he length of the sentence must be based on circumstances existing at the time supervision was granted, and subsequent events may not be considered in selecting the base term or in deciding whether to strike the additional punishment for enhancements charged and found." The rule "clearly prohibits the superior court from considering events subsequent to the grant of probation when determining the length of a prison term upon revocation of probation." (People v. Goldberg (1983) 148 Cal.App.3d 1160, 1163, fn. 2.) The "spirit and purpose of the rule" is to "preclude the possibility that a defendant's bad acts while on probation" will influence his sentence upon revocation of probation. (Id. at p. 1163.)
California Rules of Court, rule 4.435 does not, however, preclude a sentencing court's consideration of events occurring between an initial grant of probation and a reinstatement of probation. (People v. Black (2009) 176 Cal.App.4th 145, 150-151; People v. Harris (1990) 226 Cal.App.3d 141, 145 (Harris).) Harris explained: "the rule allows consideration of circumstances preceding a reinstatement of probation. . . . [R]einstating probation on modified terms appears to be a new grant of probation within the meaning of the rules. . . . Thus, nothing in the language of the rules bars considering events predating a reinstatement of probation." (Harris, at pp. 145-146, italics omitted; see People v. Downey (2000) 82 Cal.App.4th 899, 917 [Harris permits consideration of a defendant's performance on probation prior to a reinstatement of probation].) To hold otherwise would "seriously impede a court's flexibility to deal effectively with the offender who, granted the 'clemency and grace' of probation in the hopes of achieving rehabilitation [citation], proves unable to abide by the conditions of that liberty the first time out. Allowing an offender to fail multiple grants of probation with absolute impunity under [former] rule 435(b)(1) would discourage a court from ever reinstating probation. That would further crowd prisons and tend to sacrifice probation's goals of supervised reform and rehabilitation [citation]." (Harris, at p. 147.)
Further, it is axiomatic that a court may consider events occurring subsequent to a probation grant when deciding whether to revoke or reinstate probation. (People v. White (1982) 133 Cal.App.3d 677, 681; People v. Jones (1990) 224 Cal.App.3d 1309, 1316, fn. 4; People v. Ayub (1988) 202 Cal.App.3d 901, 905.)
Our review of the record does not convince us that the trial court relied upon events occurring subsequent to the initial grant of probation as a basis for its imposition of the upper term. In imposing the upper term, the court stated "I'm looking at his history and it looks likes [sic] there were repeated violations and this is of the same nature so I am going to give the aggravated sentence." Defendant contends these comments demonstrate the court considered his post-probation conduct as a basis for imposition of the upper term. We disagree.
Although the prosecutor's sole justification in urging the court to impose the upper term was that defendant had committed vandalism while on probation for vandalism, there is no indication in the record to support defendant's claim that the court relied on his most recent vandalism offense in imposing the upper term. The court did not explicitly state that it was basing the sentence on defendant's post-probation conduct. Before probation was granted, defendant had a long criminal history, replete with continuing violations of the law. As explained in the probation report, defendant's criminal history included five juvenile convictions and nine convictions committed as an adult, all within the past 10 years. Defendant's criminal history also included multiple vandalism offenses. The court's statements were thus a fair description of defendant before he was granted probation. Moreover, nothing in the record supports defendant's speculative argument that the court imposed the upper term because of his release date if given the middle term.
In any event, under Harris it was not improper for the trial court to consider, as factors supporting the imposition of the upper term, defendant's conduct between the initial grant of probation and reinstatement of probation in December 2016. During that period, defendant was cite-released for committing the new offense of being under the influence of a controlled substance, thereby violating the law. In addition, during that period, defendant had failed to report to his probation officer as directed, failed to keep his probation officer informed of his place of residence, and had used a controlled substance. These facts, which the trial court could properly have considered, further demonstrated defendant continued to violate the law and failure to abide by the terms and conditions of his probation.
Defendant asserts that Harris was wrongly decided and that any reliance on Harris is misplaced. We disagree and decline defendant's invitation to reject the holding in Harris. (See People v. Black, supra, 176 Cal.App.4th at p. 151 [following Harris and noting that "the Harris decision has been good law since 1990"].)
Imposition of the upper term was not an abuse of discretion. Courts have broad sentencing discretion, and we review a trial court's sentencing choices for abuse. (People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).) We reverse only if there is a clear showing the sentence was arbitrary or irrational. (Ibid.; People v. Moberly (2009) 176 Cal.App.4th 1191, 1196; People v. Avalos (1996) 47 Cal.App.4th 1569, 1582-1583.) Absent 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.) A trial court abuses its discretion if it relies upon circumstances that are not relevant to, or that otherwise constitute an improper basis for, the sentencing decision. (Sandoval, at p. 847; Moberly, at p. 1196.)
Under section 1170, when a statute specifies three possible terms, choice of the appropriate term rests within the trial court's discretion. (§ 1170, subd. (b).) The court may consider the record in the case, the probation report, evidence introduced at the sentencing hearing, and "any other factor reasonably related to the sentencing decision" (Cal. Rules of Court, rule 4.420(b)), and "shall select the term which, in the court's discretion, best serves the interests of justice." (§ 1170, subd. (b).) The existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for imposition of the upper term. (Sandoval, supra, 41 Cal.4th at p. 848; People v. Black (2007) 41 Cal.4th 799, 813; People v. Osband (1996) 13 Cal.4th 622, 728.) Imposition of an upper term sentence is permissible when based upon the aggravating circumstance of the defendant's criminal history. (See People v. Black, at p. 818; Sandoval, at pp. 836-837.) There was therefore no abuse of discretion. (See Sandoval, at p. 837; People v. Carmony (2004) 33 Cal.4th 367, 377.)
Even if defendant's trial counsel had objected to the court's purported reliance on improper factors in imposing the upper term, the record does not suggest that such an objection would have resulted in a lesser sentence. " 'Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in qualitative as well as quantitative terms.' " (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) 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.
Therefore, based on the foregoing, defendant's ineffective assistance of counsel claim must fail. (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 counsel's failings"].)
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. SLOUGH
J.