Opinion
NOT TO BE PUBLISHED
APPEAL from an order and a judgment of the Superior Court No. MA043354-01 of Los Angeles County. Richard E. Naranjo, Judge. Reversed with directions.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Paul M. Roadarmel, Jr., Deputy Attorneys General.
CHANEY, J.
After finding that Devonn Darrell Byous had violated the terms of his probation, the trial court sentenced him to state prison for the three-year upper term. On appeal Byous contends that the trial court abused its discretion by basing its selection of the upper term sentence on legally impermissible factors. He also seeks recalculation of his presentence credits under Penal Code section 4019, as amended, as of the original date of sentencing. We reverse and remand for resentencing.
Statutory references are to the Penal Code unless otherwise specified.
Statement of the Case and the Facts
Because this appeal involves only a sentencing issue, a detailed recitation of facts is unnecessary. (People v. Zuniga (1996) 46 Cal.App.4th 81, 82.) On September 22, 2008, Byous entered a no contest plea to a felony complaint charging violation of Penal Code section 12020, subdivision (a)(4), carrying a dirk or dagger. The plea was entered under an agreement for a disposition of 180 days in county jail and three years formal felony probation. He was released under a Cruz waiver agreement, waiving his right to withdraw his plea in the event he failed to return for sentencing at the designated date and time. As part of that agreement he confirmed his understanding that if he were to violate the terms of the agreement, or of his probation, he might be sentenced to a prison term of up to three years.
People v. Cruz (1988) 44 Cal.3d 1247 held that unless he has knowingly and intelligently waived the right, a defendant who pleads under a plea bargain that is later disapproved due to his failure to appear for sentencing may withdraw his plea. (Id. at p. 1254, fn. 5.)
Byous failed to appear for sentencing at the designated time, 8:30 a.m. on October 17, 2008. For that violation, the trial court withdrew the agreed-upon disposition, suspended imposition of sentence for 36 months, and placed Byous on formal felony probation with various conditions, including a term of 210 days (instead of 180 days) in the county jail, and court-ordered domestic violence counseling.
On October 7, 2009, Byous was rearrested for a new felony—an alleged April 22, 2009 assault against the victim of a previous misdemeanor incident—and on October 9, 2009, the court revoked his probation. On November 19, 2009, the court found that Byous had violated the terms and conditions of his probation, and sentenced him to state prison for the upper term of three years. The court explained that it chose the upper term sentence because Byous had violated his probation by failing to complete his court-ordered domestic violence counseling, and “due to the nature of the alleged offenses that occurred on April 22, 2009....”
Section 1170, subdivision (c), provides that “[t]he court shall state the reasons for its sentencing choice on the record at the time of sentencing.”
The November 19, 2009 order is appealable. (§1237, subd. (b).) Byous’ appeal, filed November 24, 2009, is timely. (Cal. Rules of Court, rule 8.308(a).)
Byous’ appeal argues that the trial court abused its discretion by basing its imposition of the upper term three-year sentence on the circumstances of his probation violation, an impermissible factor. His brief also anticipates the Attorney General’s responsive argument—that the failure of his trial counsel to object to the court’s reliance on impermissible factors waived any error—contending both that the circumstances show no waiver, and that if there was a waiver, his counsel’s failure to object demonstrates that he was afforded ineffective representation by his appointed counsel in the trial court. Byous also seeks recalculation of his presentence credits under Penal Code section 4019, as amended, as of the original date of sentencing, consistent with this court’s decision in People v. House (2010) 183 Cal.App.4th 1049, and other like decisions.
Byous does not contend that the trial court erred in concluding that the violations warranted revoking his probation and sentencing him to state prison.
The Attorney General does not address whether a conclusion that Byous waived review of the sentencing error would establish ineffective assistance of counsel at trial, but does contend that even if the trial court erred by basing its sentence on events subsequent to the grant of probation, any error was both harmless and beyond reach by this appeal due to Byous’ failure to obtain a probable cause certificate. (See § 1237.5; Cal. Rules of Court, rule 8.304(b).) The Attorney General also argues—admittedly contrary to this court’s decision in People v. House, supra, 183 Cal.App.4th 1049—that Byous should not get the retroactive benefit of the amendment to section 4019.
Discussion
1. The trial court apparently erred by relying on appellant’s probation violation to justify imposing the upper term three-year sentence.
Rule 4.435(b)(1) of the California Rules of Court provides that when a trial court revokes and terminates probation and commits the defendant to state prison, “[t]he length of the sentence must be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term.” (People v. Angus (1980) 114 Cal.App.3d 973, 989.) According to the Advisory Committee Comment to rule 4.435, “[t]he restriction of subdivision (b)(1) is based on In re Rodriguez (1975) 14 Cal.3d 639, 652: ‘[T]he primary term must reflect the circumstances existing at the time of the offense.’” 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 trial court identified the factors on which it relied to justify its imposition of the upper term sentence: Byous’ failure to complete the domestic violence counseling that had been required as a condition of his probation, and the alleged offenses of April 22, 2009. These factors—the only justifications identified—unquestionably constitute “subsequent events” and circumstances that did not exist “at the time probation was granted....” (Cal. Rules of Court, rule 4.435(b)(1).) We take the trial court at its word; we therefore must conclude that the trial court erred by relying on those factors as a basis for imposing the upper term sentence.
Byous was not required to obtain a certificate of probable cause as a prerequisite to his appeal from this error. Section 1237.5 requires that a certificate of probable cause must be obtained in order to prosecute an appeal “from a judgment of conviction upon a plea of guilty or nolo contendre, or a revocation of probation following an admission of violation”; but Byous’ appeal falls into neither of these categories. Byous does not seek to set aside the judgment of conviction that rests on his no contest plea; nor did he admit the violation of his probation, or challenge its revocation. The appeal thus does not attempt to accomplish what the probable-cause-certificate requirement is designed to prevent: use of the appellate process to obtain a better bargain than was afforded by the plea agreement. (See People v. Hester (2000) 22 Cal.4th 290, 295.) The appeal requires no certificate of probable cause.
Byous’ plea agreement provided that he would serve a term in the county jail and would submit to formal probation. He specifically confirmed his understanding and agreement that he might be sentenced to a state prison term of up to three years if he were to violate the terms of his agreement or his probation. But he did not agree that the three-year upper term would be the appropriate sentence in the event of a violation, or that his prison term would necessarily be the maximum term of three years. His plea agreement contemplated “that the court will choose from among a range of permissible sentences within the maximum, and that abuses of this discretionary sentencing authority will be reviewable on appeal, as they would otherwise be.” (People v. Buttram (2003) 30 Cal.4th 773, 790-791.) Appeals that challenge the sentence imposed within the maximum permissible under the plea agreement “do not constitute an attack on the validity of the plea, for which a certificate is necessary.” (Id. at p. 791.)
Without the plea agreement, the three-year upper term sentence could have been imposed only if it were justified at that time by the circumstances and the law. After the revocation of probation, the requirements for sentencing did not change. The rules mandate that upon revocation of probation, “[t]he length of the sentence must be based on circumstances existing at the time probation was granted”; the plea agreement did not provide otherwise. By entering into the plea agreement Byous did not concede that a three-year upper term sentence would be appropriate even if it were not justified by the circumstances existing when probation was granted. He did not consent to imposition of a sentence resting on factors that violate applicable sentencing rules, including the rule that prohibits the court from considering subsequent events.
Although “‘a trial court is presumed to have been aware of and followed the applicable law, ’” (People v. Martinez (1998) 65 Cal.App.4th 1511, 1517), that presumption is rebutted here, where the record shows that it did not. The trial court’s express reliance as the basis for its upper term sentencing determination on circumstances that did not exist when probation was granted therefore abused the discretion conferred by rule 4.435(b)(1). (People v. Sandoval (2007) 41 Cal.4th 825, 847 [trial court abuses its discretion in sentencing “if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision”].)
2. The failure of Byous’ counsel to object to the trial court’s impermissible reliance on improper factors in imposing the upper term sentence indicates that Byous did not receive the effective assistance of counsel in the trial court.
The identification of error in the trial court’s imposition of sentence is not enough to justify reversal in this case, however. The Attorney General correctly contends that the failure of Byous’ counsel to object on his behalf in the trial court bars our reliance on the improperly based sentencing order as grounds for its reversal on appeal. An appellant may not challenge the trial court’s discretionary sentencing choices if he did not object at trial. “[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons”—including “cases in which the stated reasons allegedly do not apply to the particular case”—“cannot be raised for the first time on appeal.” (People v. Scott (1994) 9 Cal.4th 331, 353, 356.)
Byous does not dispute that objection in the trial court, if it is reasonably feasible, is required in order to preserve the error for review on appeal. But under the language of the Scott decision, he argues, the sentencing error is not waived by a failure to object to it unless before the sentence was imposed the defendant had a meaningful opportunity to object; and no meaningful opportunity occurs unless “during the course of the sentencing hearing itself and before objections are made, the parties are clearly apprised of the sentence the court intends to impose and the reasons that support any discretionary choices.” (People v. Scott, supra, 9 Cal.4th at p. 356, italics added.)
That did not happen here. The trial court gave no indication before announcing the sentence that it intended to impose the upper term three-year sentence, or that in doing so it was relying on events that occurred after probation had initially been imposed. Byous therefore contends that either his counsel had no meaningful opportunity to object before sentence was entered—precluding waiver of the error—or if he did have a meaningful opportunity to object but nevertheless failed to do so, that failure demonstrates lack of effective assistance of counsel at the hearing. Either way, he argues, reversal and remand for resentencing therefore is required.
“‘[A] defense attorney who fails to adequately understand the available sentencing alternatives, promote their proper application, or pursue the most advantageous disposition for his client may be found incompetent.’” (People v. Gonzalez, supra, 31 Cal.4th at p. 751, quoting People v. Scott, supra, 9 Cal.4th at pp. 350–351.)
The Supreme Court’s decision in People v. Gonzalez (2002) 31 Cal.4th 745, dispels Byous’ contention that before imposing sentence the trial court must articulate its proposed ruling and afford counsel an opportunity to interpose objections. Notwithstanding the language of Scott, quoted above, the trial court need not signal “the sentence the court intends to impose” in advance. The error is preserved for review if an objection to it is interposed “‘during the course of the sentencing hearing itself, ’” but not necessarily before sentence is imposed. (People v. Gonzalez, supra, 31 Cal.4th at p. 751.)
The record indicates that during the course of the hearing Byous’ counsel did have a meaningful opportunity to object to the trial court’s reliance on impermissible factors, but failed to do so. At the hearing the People presented evidence that Byous had violated his probation, argued that probation should not be reinstated, and argued that “the high term of three years” should be imposed. Byous’ counsel urged that much of the evidence showing violation of the probation terms should be excluded, and probation should be reinstated; but he did not address what sentence would be appropriate reinstatement if probation were to be denied. The trial court then declined to reinstate probation, and— without any reference to the probation report and without pausing for further argument—immediately imposed sentence.
But immediately after articulating Byous’ sentence, the court then asked Byous’ counsel whether there was “anything else” he wished to address. Counsel requested Byous’ release on bail or his own recognizance, requested transcripts, and announced Byous’ intention to appeal from the ruling. But he did not object to the sentence on the ground that the court’s reasons for choosing the upper term sentence were improper, as he then plainly could have done. The record thus shows that counsel did have a meaningful opportunity to object—and to preserve the issue for review—“during the course of the sentencing hearing itself....’” (People v. Gonzalez, supra, 31 Cal.4th at p. 751; People v. Scott, supra, 9 Cal.4th at p. 356.) That is all that is required.
While a criminal defendant has a constitutional right to the effective assistance of counsel at every critical stage of the proceeding (People v. Cudjo (1993) 6 Cal.4th 585, 615), it is not a foregone conclusion that a failure to preserve the objection to the imposition of the upper term sentence for review must inevitably compel the conclusion that counsel’s representation was ineffective, or that reversal is necessarily required. (People v. Gonzalez, supra, 31 Cal.4th 745.) The burden of sustaining a charge of inadequate trial representation is on the appellant. (People v. Camden (1976) 16 Cal.3d 808, 816.) To sustain that burden, Byous must affirmatively show not just that his counsel’s failure to object would not be expected of a reasonably competent advocate, but also that no tactical rationale would justify the failure to object. If the record suggests that counsel’s failure to object might have resulted from an informed tactical decision, the conviction should be affirmed. (See People v. Fain (1969) 70 Cal.2d 588, 601.) Moreover, in order to sustain his charge of inadequate representation, Byous must demonstrate prejudice resulting from it—in this case, by showing that an objection, had it been interposed, would have had some reasonable likelihood of resulting in a more beneficial sentence. (People v. Pope (1979) 23 Cal.3d 412, 425.)
Byous argues, with some logical basis, that where a maximum term sentence is imposed, no informed tactical basis can be found (or presumed) for a failure to object to the court’s express reliance on grounds that are prohibited by law. (See People v. Cotton (1991) 230 Cal.App.3d 1072, 1085 [court can infer tactical decision where mitigated term sentence, not maximum term sentence, is imposed following revocation of probation].) And as noted above, the Attorney General does not address the issue. While undoubtedly the trial court could have been justified in imposing the upper term sentence without relying on improper factors, it did not. We decline to speculate how the court might have exercised its broad sentencing discretion if the error had been brought to its attention and it had not relied on legally prohibited post-probation factors. “The reviewing court cannot substitute its reasons for those omitted or misapplied by the trial court, nor can it reweigh valid factors bearing on the decision below.” (People v. Scott, supra, 9 Cal.4th at p. 355.)
The record reveals no apparent tactical justification for counsel’s failure to object to the trial court’s express reliance on the improper factors, and none have been suggested. “Although the court is required to impose sentence in a lawful manner, counsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing.” (People v. Scott, supra, 9 Cal.4th at p. 353.) We therefore conclude that the failure of Byous’ trial counsel to interpose an appropriate objection reflects ineffective assistance of counsel that resulted in apparent prejudice to Byous—the waiver of a meritorious objection to his sentence based on those grounds.
While we do not know whether appropriate evaluation of the probation report and any other appropriate factors might lead to the imposition of a more favorable sentence upon remand, Byous is entitled to a sentence that reflects the trial court’s exercise of discretion based on legally permissible factors. (People v. Jones (2007) 157 Cal.App.4th 1373, 1383 [defendant was entitled to sentencing decision based on trial court’s “‘informed discretion’”]; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530, fn. 13 [remand required when record discloses trial court misunderstood scope of its discretion].)
Here, the record indicates that counsel’s failure to object, which resulted in the waiver of an otherwise meritorious ground for reversal on appeal, resulted from a failure “to adequately understand the available sentencing alternatives” and to “pursue the most advantageous disposition for his client”—thereby failing to meet the standards required of a diligent advocate. (People v. Gonzalez, supra, 31 Cal.4th at p. 751.) Because Byous was deprived of the adequate assistance of counsel at the time of his sentencing, the sentencing order must be reversed and the matter remanded for resentencing based on legally permissible factors. (People v. Pope, supra, 23 Cal.3d at pp. 425-426.)
Our decision renders moot the request for recalculation of the presentence credits to which Byous is entitled under Penal Code section 4019, as amended.
Disposition
Byous’ upper-term three-year prison sentence is set aside, and the matter is remanded to the superior court for resentencing based on legally permissible factors. In all other respects the judgment is affirmed.
We concur: MALLANO, P. J.JOHNSON, J.