Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. EE504770
RUSHING, P.J.
Defendant Jose Meza appeals from an order revoking probation and committing him to state prison. He contends that his trial attorney was prejudicially ineffective in failing to request that the trial court state its reasons for sentencing defendant to prison rather than reinstating probation. Although we are troubled by counsel’s failure to draw the court’s attention to its statutory duty to state reasons for its sentence choices, we see no reasonable likelihood on this record that counsel’s omission had any effect on the court’s decision. Accordingly, we will affirm the judgment.
Although defendant’s name is spelled “Mesa” throughout much of the record, he testified that the correct spelling is “Meza.”
Background
On November 17, 2005, defendant was charged by criminal complaint with a violation of Penal Code section 245, subdivision (a)(1), a felony, in that he had, two days earlier, committed an assault upon Roberto Luzanilla with a deadly weapon or by means of force likely to produce great bodily injury. According to the probation revocation petition, the charge arose from an altercation in which defendant first accused the victim of having “ ‘ratted’ him out to police for stealing bicycles,” and then attacked the victim with “a section of chain about 4 feet long and 3/4 of an inch in diameter.” The victim reportedly sustained contusions to his shoulder and forearm, but declined medical attention.
On or about December 12, 2005, defendant entered a plea of no contest to assault with force likely to produce great bodily injury, on condition that he would not be sentenced to state prison but would receive a six-month jail sentence. The allegation of assault with a deadly weapon was stricken from the complaint. On January 5, 2006, in accordance with this arrangement, defendant was placed on probation and ordered to pay various fees and fines. The court referred to the “pronounce[ment]” of sentence and stated that its “[i]mposition” was “suspended,” but in fact no sentence as such was pronounced; the court merely directed defendant be placed on three years probation on specified terms including a “county jail sentence” of six months.
On September 18, 2006, defendant was arrested on charges of misdemeanor battery on an intimate (Pen. Code, §§ 242, 243, subd. (e)), and misdemeanor vandalism (Pen. Code, § 594, subd. (a)), and was taken into custody on a probation hold. On March 12, 2007, the court conducted a hearing on allegations that defendant had violated probation by (1) committing the charged September 18 misdemeanors; and (2) wilfully failing to pay the sums ordered at the time of his probation, consisting of $200 in fines and $2,711.05 in fees. In support of the first charged violation, Kimberly Miller testified that on an early morning in September, 2006, defendant came to her Sunnyvale apartment. She had known him for seven years, and they had had a romantic relationship. On this occasion defendant had been drinking. After he prepared himself some food in her kitchen, he angrily threw a bowl on the table, breaking it. At some point he hit her with his fist on the back of the head, causing a lump. About an hour after this occurred, Ms. Miller “[k]ind of” asked him to leave, and he did so. However, he then returned and began kicking angrily at her door, whereupon she called 911. A recording of the call was played in court. Ms. Miller testified that a banging sound in the background was defendant “kicking the door in.” He succeeded, she testified, in kicking a hole in the door, through which he reentered the apartment. Somebody told him that the police had arrived, and he left.
In support of the second charged violation, Probation Officer Manuel Gonzalez testified about the sums defendant was ordered to pay, the balance due on them, defendant’s failure to make payments, and his knowledge of the terms and conditions of his probation. He further testified that during an interview in August 2006, defendant said that he was homeless, living in shelters and camps, and working as a day laborer. However, during an interview in January 2007, defendant said that he was going to begin making payments and that he earned enough money to do so. At that time defendant denied having hit Ms. Miller. He also said that he did not wish to be on probation any longer, but would accept a one-year local jail commitment with no credits. Officer Gonzalez testified that defendant’s assault conviction was his first felony conviction, and that many of his nine misdemeanor convictions were “[a]lcohol related . . . .”
In his defense defendant testified through a translator that when he first spoke to a probation officer she told him he would have to make payments, but when he asked her for “some help for me because I had some problems with drinking,” she said, “ ‘Well, you can go ahead and drink, but what you have to do is pay the money here.’ ” Asked if he had hit Ms. Miller, he testified, “I think that she’s lying.” He seemed to testify that someone else was hitting and “pushing” her. Later he testified less equivocally that “She’s lying,” and, “We just argued.” He acknowledged kicking the door, but denied entering through it, testifying instead that Ms. Miller opened it to him. Asked on cross-examination whether he and Ms. Miller had drunk some tequila, he testified, “I am alcoholic, so I drink.” Later he volunteered that he was an alcoholic, had wanted to get into a program before, and was “today . . . very thankful for the program that I am going while I am in jail . . . .” Pressed to acknowledge that he spent money on alcohol that might have been applied instead to his fines and fees, he said, “I didn’t have time to get adjusted, to get used to. And when I got out, I thought that I was going to be sent to something now for alcohol programs, and I would have gone gladly if I would have been sent.” With respect to the underlying assault charge, he did not flatly deny that he had hit the victim with a chain, but neither did he admit it, stating only that “we did fight” and “We fought with fists.”
After both parties rested, the court invited argument. The prosecutor argued only that defendant had elected to buy alcohol rather than make payments. Defense counsel argued that, for reasons we need not recount, Ms. Miller was not a credible witness. In addition he asserted that defendant’s failure to pay was not wilful. He urged the court to note, if it found a probation violation, that this was defendant’s first felony, that five or six of his nine misdemeanors were “drunk in public, 647f type” offenses, and that defendant “has a longstanding alcohol problem that he candidly admits.” Counsel requested that the court “give him another chance on probation so that he may deal with his alcoholism and attempt to comply with the terms and conditions of probation.”
The court found both alleged violations proven, and “particularly the . . . vandalism portion” of the new charges. In sustaining the failure-to-pay charge, the court observed, “I understand the defendant’s problem with alcoholism, but there is no dispute that he was spending in excess of $30 a week on alcohol which could have been used to pay his restitution.” The court asked if there was any reason why it “should not now proceed to impose sentence,” to which defense counsel replied, “No, sir.” The court then declared, “The defendant is sentenced to three years in the California Department of Corrections.” Discussion ensued concerning the credits to which defendant was entitled, after which the court admonished defendant concerning the parole consequences of his conviction. This exchange then occurred: “THE DEFENDANT: Is there any way I can serve this in the county program? [¶] THE COURT: No. [¶] THE DEFENDANT: I cannot accept the charges if the woman thinks like that. [¶] THE COURT: Okay, thank you.” The court ordered the return of exhibits, and concluded the hearing.
This timely appeal followed.
Discussion
Defendant’s sole contention is that trial counsel was prejudicially ineffective in failing to object or otherwise draw attention to the trial court’s failure to state reasons for imposing a prison term rather than reinstating probation. We accept respondent’s concession that this was a sentencing choice for which a reason must be stated. (See People v. Cotton (1991) 230 Cal.App.3d 1072, 1080-1081, and cases cited; Pen. Code, § 1170, subd. (c); Cal. Rules of Court, rules 4.405(6), 4.406(b)(2).) It follows that the trial court erred by failing to state reasons. However, as defendant in turn concedes, that error cannot be raised for the first time on appeal; it must first have been brought to the trial court’s attention at the sentencing hearing. (See People v. Scott (1994) 9 Cal.4th 331, 353, 356.) The appeal therefore turns on the question whether counsel rendered prejudicially deficient assistance by failing to bring the error to the trial court’s attention.
To establish ineffective assistance of counsel, two basic elements must appear. The first is that counsel’s performance was actually deficient, i.e., he failed to act “in a manner to be expected of reasonably competent attorneys acting as diligent advocates.” (People v. Pope (1979) 23 Cal.3d 412, 425; see Strickland v. Washington (1984) 466 U.S. 668, 688 [“the defendant must show that counsel’s representation fell below an objective standard of reasonableness”] (Strickland).) The second is that this failure was prejudicial: “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at p. 694.)
These are independent requirements; both must be present to warrant appellate relief. Accordingly, a reviewing court “need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” (Strickland, supra, 466 U.S. at p. 697.) If prejudice does not appear, the court need not decide whether counsel’s performance was actually deficient. (Ibid.)
Here defendant has failed to establish a reasonable probability that an objection by counsel would have produced a more favorable result. He asserts that “had the court been required to explain its reasoning for denial of treatment and probation at sentencing, the court may [sic] have realized that Mr. Meza had a minimal record with no prior violence, had never been to prison before and was requesting treatment for his alcoholism. Thus, the failure to request that the court state its reasons on the record caused sufficient prejudice, rendering the hearing fundamentally unfair as is required under Strickland v. Washington, supra, 466 U.S. 668.”
We fail to see how the court could have failed to “realize[]” the matters alluded to. The nature of defendant’s prior record, as well as his expressed desire for alcohol treatment, were repeatedly brought to the court’s attention. The probation revocation petition expressly acknowledged that defendant’s “criminal history consists of nine misdemeanor convictions, most for being under the influence of alcohol,” that “[a]lcohol continues to be a major problem in his life,” and that mitigating factors present included “his minimal criminal record . . . .” Defendant’s attorney elicited live testimony from Officer Gonzalez that defendant had no prior felony convictions, and that many of his nine misdemeanor convictions were “[a]lcohol related.” Defendant himself testified that he told his first probation officer he wanted help for his “problems with drinking,” that he was an alcoholic, that he had wanted to get into a program for some time, that he was grateful to be in a program in jail, and that he would have gladly attended a program sooner if sent. Defense counsel reiterated that this was defendant’s first felony, that at least half his misdemeanors were for public drunkenness or the like, and that defendant had a “longstanding alcohol problem that he candidly admits.” Counsel expressly entreated the court to “give [defendant] another chance on probation so that he may deal with his alcoholism and attempt to comply with the terms and conditions of probation.” Moreover, the court expressly acknowledged defendant’s alcohol problem in finding that his failure to pay fees and fines was wilful.
The record fails to bear out defendant’s premise that the court was insufficiently aware of these matters. Nor does it afford any other basis to believe that the court, if reminded of its obligation to state reasons for choosing imprisonment over probation, would have chosen the latter. Despite the revocation petition’s acknowledgment of defendant’s minimal criminal record and his alcohol problem, it recommended a prison commitment because those factors were outweighed by his use of a weapon in the underlying assault and a pattern of increasing seriousness as reflected in that offense. The report did not mention another possible aggravating factor, which was that defendant’s performance on probation had been unsatisfactory. (See Cal. Rules of Court, rule 4.421(b)(5).) Nor did it mention, as a possible unenumerated aggravating factor, defendant’s unwillingness to remain on probation as expressed to the probation officer and recounted both in the petition and in the officer’s testimony at trial.
Defendant attempts to compare this case to People v. Cotton, supra, 230 Cal.App.3d 1072, 1081, where the imposition of a previously pronounced prison sentence was reversed. It is evident, however, that the operative error there was not a mere failure to state reasons but the court’s apparent reliance on an unsound reason. The reviewing court observed that the trial court had “failed to express any reason for the prison commitment, and the only reason that appears inferentially is that appellant failed to exert reasonable efforts to gain entrance into a drug rehabilitation program.” (Ibid., italics added.) After quoting the sentencing proceedings at length, the court continued, “It is quite apparent from the record that appellant was incarcerated, without funds, and unable to contact a drug rehabilitation program. Consequently, the court cannot use appellant’s inability to contact a drug program as a reason for committing him to prison, and the matter must be remanded.” (Id. at pp. 1082-1083.) The court did not address the question of prejudice as such. Indeed, the decision did not arise within the framework of ineffective assistance of counsel, for it predated People v. Scott, supra, 9 Cal.4th 331. The decision therefore affords little if any guidance in determining whether counsel’s omission here should be ruled prejudicial. The most pertinent passage of the opinion for our purposes is its statement, “The record must establish that the trial court understands that two separate and distinct decisions are involved in its sentencing choice: (1) To revoke probation; and (2) to sentence to state prison rather than place the defendant on probation on new or modified conditions.” (People v. Cotton, supra, 230 Cal.App.3d at p. 1081.) Here, counsel’s repeated entreaties to reinstate probation and the revocation petition’s explicit acknowledgment of this possibility leave little room for a rational conclusion that the court acted under any misunderstanding on these points.
In his reply brief defendant asserts, “There is a reasonable probability that Mr. Meza would have received treatment for alcoholism had counsel been diligent in objecting to the court’s failure to state the reasons for its sentence on the record.” Again we see no basis in this record for such a finding. Defendant stated that he had participated in a program “in jail” but no attempt was made to inform the court of any details of the program, his performance in it, or the likelihood that he would actually avail himself of that or any other program once free of custody. Indeed, his willingness to comply with that or any other condition of probation was cast in serious doubt by his professed preference for a straight year in jail over continued probation. In any event the case differs on this point from Cotton, supra, 230 Cal.App.3d 1072, where the defendant told the court that he had a phone number for a specific program, which he named and described, but which he had been unable to contact because “ ‘they don’t accept collect phone calls.’ ” (Id. at p. 1081.) The court’s error there apparently consisted of treating defendant’s efforts as insufficiently diligent when there was no basis to believe he had the means to do anything more than he had done. Here defendant expressly indicated that he would rather serve time than attempt to comply with the conditions of probation. Given this and the other circumstances of record it is impossible to conclude that a reminder of the court’s obligation to state reasons would have been reasonably likely to lead to a reinstatement of probation.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.