Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County Super. Ct. No. MCR031114. Eric C. Wyatt, Judge.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Hill, J. and Kane, J.
Appellant Darrall Wright pled no contest to a charge of malicious mischief in violation of Penal Code section 594, subdivision (a), based on allegations that he and other gang members attempted to break down someone’s front door with a large metal pipe. The trial court placed appellant on probation subject to certain terms and conditions, including that he (i) not associate with known gang members, (ii) not wear gang insignia, emblems or colors, and (iii) obey all laws. Approximately one month later, the trial court found that appellant had violated his probation by wearing gang insignia and lying to a police officer. The trial court revoked probation and sentenced appellant to the upper term of three years. Appellant appeals on the grounds that there was insufficient evidence to show a violation of probation and that the trial court abused its discretion in sentencing him to the upper term. We will affirm.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
Because appellant pled no contest, the following description of the alleged malicious mischief is derived from the Report and Recommendation of Probation Officer:
“On February 29, 2008, at about 4:00 pm., Madera Police Officer Foss was dispatched to [a Madera address] regarding vandalism. Upon arrival, Officer Foss contacted the victim.… [The victim] told Officer Foss that he was a Sureno gang member and that he attended … [s]chool in Madera. [The victim] stated there was a disagreement between Sureno and Norteno gang members at school and reported that he had recently been assaulted at the school by several Norteno gang members. [The victim] stated he was standing in the front yard of his residence … when he saw about ten subjects running towards his house. He stated he immediately recognized the subjects as Norteno gang members because he recognized [appellant], who is known as a Norteno gang member and all the subjects were wearing red clothing. [The victim] stated he … went into the residence and locked the door. He stated the subject[s] then approached the front door and attempted to force their way inside. [The victim] stated he observed [appellant] use a large metal pipe to hit the security screen door, causing a large hole in the metal. Officer Foss again asked [the victim] if he recognized any of the subjects that came to his house and he stated [appellant] was the subject holding the metal pipe.”
On March 11, 2008, the Madera County District Attorney filed a criminal complaint charging appellant in count 1 with malicious mischief (§ 594, subd. (a)) and in count 2 with criminal gang activity (§ 186.22, subd.(a)). The complaint included a special allegation that the offense in count 1 was committed in the furtherance of gang activities pursuant to section 186.22, subdivision (b)(1)(A).
Pursuant to a plea bargain, appellant pled no contest to count 1 and the other allegations were dismissed.
On April 17, 2008, at the time for sentencing, the trial court granted probation to appellant on certain terms and conditions, including explicit “‘[g]ang’ conditions.” Among the gang-related conditions, appellant was directed that he “shall not associate with any person known to [him] as a gang member” and that he “shall not possess or wear any clothing or item or display any hand signs with gang significance or which are indicia of gang membership (i.e. colors, symbols, insignia, numbers, monikers, patterns, etc.) known by [him] to be such, as may be identified as such by law enforcement or probation officers.” Among the general conditions of probation, appellant was ordered to “[o]bey all laws.”
On May 9, 2008, the Madera County Probation Department filed a petition for revocation of appellant’s probation. The petition set forth three conditions of probation that appellant had allegedly violated—namely, that he obey all laws, that he not associate with known gang members, and that he not wear gang insignia or colors. In particular, it was alleged that appellant had (1) violated section “529.3” on April 25, 2008; (2) associated with known gang members on April 25, 2008; and (3) wore “gang paraphernalia” on May 8, 2008.
No such code section exists. The allegation may have been referring to section 529, subdivision (3), which describes the crime of false impersonation. The trial court found there was adequate notice of the nature of the alleged offense and identified the correct section as 148.9.
An evidentiary hearing on the petition was held on May 23, 2008. Madera Police Officer Foss testified that on April 25, 2008, he approached a parked vehicle in the area of 1100 Cross Street in Madera and asked appellant, who was in the front passenger seat, his name. Appellant responded that he was “Eric Rodriguez” and said he was born in 1989. A check through dispatch of the name Eric Rodriguez came back clear. Officer Foss discovered appellant’s true identity when another officer recognized appellant’s photograph. When asked why he gave a false name, appellant told Officer Foss that “lying just comes naturally.”
Appellant’s probation officer, Alberto Palma, who served on the Madera County Gang Enforcement Team, testified that Nortenos are criminal street gang members with common signs or symbols that include the color red, the number 14, the letter “N,” and the “Huelga [b]ird.” He said the primary activities of Nortenos are illegal drug sales, assaults, drive-by shootings and robberies. On April 25, 2008, Probation Officer Palma contacted appellant in the vicinity of 1100 Cross Street and observed that appellant was then in the presence of other Norteno gang members. On May 8, 2008, Probation Officer Palma went to appellant’s residence to arrest him for violation of probation. At that time, appellant was wearing a red belt with a Huelga bird on the belt buckle, which is common gang attire for Nortenos.
After hearing the evidence, the trial court found that appellant gave a false name to Officer Foss in violation of section 148.9 and wore a red belt with a gang emblem on it. It was clear that in these two actions appellant had violated the terms and conditions of his probation. Due to the violations, probation was revoked and the matter was continued for resentencing.
The trial court concluded the evidence was insufficient to establish that appellant had associated with persons known to be gang members.
On June 26, 2008, appellant was sentenced to the upper term of three years for his violation of section 594, subdivision (a). The trial court considered several factors, including appellant’s criminal record, his involvement in violent conduct that indicates he is a serious danger to society, and his prior unsatisfactory performance on probation. This appeal followed.
DISCUSSION
I. Substantial Evidence Supported Finding that Appellant Violated His Probation
Section 1203.2, subdivision (a), authorizes the trial court to revoke probation if it has reason to believe that the person has violated any of the probation conditions. Facts supporting revocation need only be proved by a preponderance of the evidence (People v. Rodriguez (1990) 51 Cal.3d 437, 442), and a trial court has very broad flexibility and discretion in deciding whether to revoke probation. (Id. at p. 443.) “In placing a criminal on probation, an act of clemency and grace [citation], the state takes a risk that the probationer may commit additional antisocial acts. Where probation fails as a rehabilitative device, as evidenced by the probationer’s failure to abide by the probation conditions, the state has a great interest in being able to imprison the probationer without the burden of a new adversary criminal trial. [Citation.]” (Id. at p. 445.)
Here, appellant contends there was insufficient evidence that he failed to abide by the terms and conditions of his probation. We uphold the trial court’s conclusion if it was supported by any substantial evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576-578.)
The record amply supports the trial court’s finding that appellant violated his probation. One of the conditions imposed was that appellant not wear clothing items that had gang significance, such as gang colors, symbols, insignia, numbers, etcetera. The trial court heard the testimony of Probation Officer Palma that appellant was found wearing an item of commonly used gang attire: a red belt with a known Norteno gang symbol (the Huelga bird). Moreover, given appellant’s history of gang association, including the Norteno “X4” tattoo on his face, it was reasonable for the trial court to infer that appellant knew the gang significance of the belt. We conclude that substantial evidence supported the trial court’s determination that appellant knowingly violated this condition of probation.
Appellant merely argues that the other probation violation found by the trial court—the section 148.9 offense—was not adequately proven because there was no showing that appellant was actually detained or arrested at the time he lied about his identity to Officer Foss. (See § 148.9, subd. (a); In re Voeurn Q. (1995) 35 Cal.App.4th 793, 795 [crime of false identification occurs while person was lawfully detained or arrested].) The argument fails because it is undisputed that appellant violated his probation by wearing gang-related attire, and therefore an adequate factual basis existed for revoking appellant’s probation. Accordingly, even if there was a deficiency with respect to the section 148.9 evidence, that error was clearly harmless. (See People v. Arreola (1994) 7 Cal.4th 1144, 1161-1162 [harmless error standard applied to evidence issue in probation revocation hearing].)
Furthermore, since at least one violation of probation was clearly proven and it demonstrated appellant’s intentional disobedience of gang-related conditions, the fact that the trial court also considered appellant’s other misconduct of lying to the police about his identity was not error, even if that falsehood technically did not occur in the context of an arrest or detention as required for a violation of section 148.9. The “total conduct” of a defendant may be considered by the trial court in revoking probation. (People v. Matranga (1969) 275 Cal.App.2d 328, 333.)
“It has been long recognized that the Legislature … intended to give trial courts very broad discretion in determining whether a probationer has violated probation. (See, e.g., People v. Lippner (1933) 219 Cal. 395, 400 [‘… only in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation.…’].” (People v. Rodriguez, supra, 51 Cal.3d at p. 443.) An appellate court will not set aside an order revoking probation unless there is a strong showing the trial court abused its discretion. (People v. Matranga, supra, 275 Cal.App.2d at p. 333.) No such showing has been made here and, as we have explained, the trial court’s conclusion that appellant violated his probation was supported by substantial evidence. The order revoking probation is affirmed.
II. Trial Court Properly Imposed Upper Term
Appellant argues the trial court abused its discretion in imposing the upper term of three years. We disagree.
We review a trial court’s sentencing decision for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847 (Sandoval).) “The trial court’s sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an ‘individualized consideration of the offense, the offender, and the public interest.’ [Citation.]” (Ibid.)
At the sentencing hearing, the trial court stated it had read and considered the original and supplemental probation reports. In exercising its discretion to select an appropriate term, the trial court carefully considered the circumstances in aggravation and mitigation pursuant to the California Rules of Court. (See rules 4.420, 4.421, 423 [setting forth relevant factors].) The trial court found applicable the following circumstances in aggravation:
Unless otherwise indicated, all further references to rules are to the California Rules of Court.
“[Appellant] has engaged in violent conduct that does indicate a serious danger to society. [Appellant] has sustained petitions in juvenile delinquency proceedings that are of increasing seriousness, involve violence as well as threats of significant violence in the [section 422], [appellant’s] prior performance on probation has been unsatisfactory as evidenced by his numerous revocations that ultimately led to the youth authority. It also, even though not indicated, the Court finds that [appellant] has numerous prior convictions, both the two now as an adult, the 594, as well as the 148.9, as well as all the prior adjudications as a juvenile.”
The only potential mitigating circumstance was the appellant’s youth, but the trial court found that because of the many years appellant had already been “in the system,” his age was not a compelling factor. The trial court concluded “the circumstances in aggravation preponderate,” and appellant was sentenced to the upper term of three years.
Appellant was 18 years old, including at the time of the section 594 offense.
As the parties acknowledge, appellant was sentenced under the revision of California sentencing law that was enacted in response to Cunningham v. California (2007) 549 U.S. 270 (Cunningham). (Stats. 2007, ch. 3.) Under the former determinate sentencing law, the trial court was required to apply the middle term unless it found there were circumstances in aggravation or mitigation to justify the upper or lower terms. Under the new scheme, the trial court has broad discretion to select among any of the three available terms and need only “state [its] reasons.” (§ 1170, subds. (b) & (c); Sandoval, supra, 41 Cal.4th at p. 850.) Because under the new law the upper term is simply the maximum in a range of available sentences, the trial court is permitted to consider any relevant sentencing factors in the exercise of its discretion, including prior convictions, without violating Cunningham. (Sandoval, supra, at pp. 843-852; People v. Wilson (2008) 164 Cal.App.4th 988, 992.)
Here, the trial court plainly complied with the requirements of the new sentencing law in imposing the upper term. The trial court gave sound reasons for imposing the upper term after carefully considering the public safety, the offense and the offender, including the factors that appellant (1) has engaged in violent conduct that indicates a serious danger to society, (2) has sustained petitions in juvenile delinquency proceedings that are of increasing seriousness, and (3) his performance on probation has been unsatisfactory. (See rule 4.421.) We find there was no abuse of discretion in imposing the upper term under the circumstances.
In attempting to show an abuse of discretion, appellant seizes upon the trial court’s brief comment to the effect that appellant’s past offenses and violations of probation were “numerous” and have continued unabated, including the offenses “now as an adult, the [section] 594, as well as the [section] 148.9, as well as all the prior adjudications as a juvenile.” Appellant notes that where sentence is imposed after a revocation of probation, the trial judge may only consider circumstances existing at the time probation was granted. (Rule 4.435(b); People v. Colley (1980) 113 Cal.App.3d 870, 873-874.) We do not read the record as indicating the trial court actually relied on events after probation was granted. Fairly read, the trial court’s elaborative remark merely highlighted, by a cumulative example, a reality that was already overwhelmingly established by the other enumerated factors—namely, appellant repeatedly returns to his criminal or street gang lifestyle. That is, the trial court was clearly imposing the upper term because of appellant’s criminal history and recidivism, not because of events subsequent to the grant of probation. In any event, to the extent any error occurred in this regard, it was forfeited by failure to object at the time of sentencing. (People v. Scott (1994) 9 Cal.4th 331, 353.) This is because such defects in the court’s statement of reasons “are easily prevented and corrected if called to the court’s attention.” (Ibid.)
Despite the trial court’s imprecise or misstated wording, it was obviously not considering the section 594 conviction to be a “prior” offense, since it was the subject conviction for which sentence was being imposed. The section 594 conviction was also the conviction concerning which the trial court originally granted probation on April 17, 2008; therefore, it was not an event “subsequent” to the grant of probation under rule 4.435(b). However, the incident in which appellant lied to a police officer about his identity—the purported violation of section 148.9—did occur after probation was granted.
Finally, appellant argues that imposition of the upper term violated Cunningham in view of the trial court’s consideration of appellant’s prior juvenile adjudications. We disagree. As recently noted in People v. Buchanan (2006) 143 Cal.App.4th 139, 149, we are in agreement with the appellate decisions holding there is no constitutional impediment to using juvenile adjudications to increase a defendant’s sentence following an adult conviction. (See People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830; People v. Lee (2003) 111 Cal.App.4th 1310, 1315-1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1075; People v. Bowden (2002) 102 Cal.App.4th 387, 391.) In accordance with these authorities and the analysis therein, we reject the contention that appellant’s prior juvenile adjudications could not be considered by the trial court. Moreover, appellant’s reliance on Cunningham is misplaced. As noted above, under the revised sentencing law, the trial court was entitled to impose the upper term based on its reasoned consideration of the factors in aggravation and mitigation (see People v. Wilson, supra, 164 Cal.App.4th at p. 992).
We reject appellant’s related claim of ineffective assistance of counsel. Any Sixth Amendment objection to the trial court’s use of prior juvenile adjudications would have been futile and meritless, since imposition of the upper-term sentence was entirely proper. (People v. Prieto (2003) 30 Cal.4th 226, 261 [“counsel’s decision to forego implausible arguments or objections does not constitute deficient performance”].) Additionally, no prejudice occurred from the failure to object because we have addressed appellant’s challenge under Cunningham.
DISPOSITION
The judgment is affirmed.