Opinion
F072426
11-01-2017
THE PEOPLE, Plaintiff and Respondent, v. MARCOS PEREZ, JR., Defendant and Appellant.
Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F12906927)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M. Skiles, Judge. Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
Before Gomes, Acting P.J., Poochigian, J. and Franson, J.
-ooOoo-
Defendant Marcos Perez, Jr., was convicted of possession of methamphetamine and possession of methamphetamine for sale. On appeal, he contends the trial court failed to exercise its discretion and state reasons for its sentencing choice when it resentenced him after reducing the conviction underlying his principal term to a misdemeanor pursuant to Proposition 47 (Pen. Code, § 1170.18). Alternatively, he contends defense counsel was ineffective for failing to object at resentencing. We affirm.
All statutory references are to the Penal Code unless otherwise noted.
PROCEDURAL SUMMARY
On October 12, 2012, defendant pled no contest to two counts in two cases. In case No. F12906927 (hereafter case No. 927), he pled no contest to felony possession of methamphetamine for sale (Health & Saf. Code, § 11378) and admitted having suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and having served a prior prison term (§ 667.5, subd. (b)). In case No. F12906275 (hereafter case No. 275), he pled no contest to felony possession of methamphetamine (Health & Saf. Code § 11377, subd. (a)) and admitted having served a different prior prison term (§ 667.5, subd. (b)). Under the plea agreement, the court indicated it would dismiss the prior strike conviction and impose a suspended term of five years eight months. Defendant's maximum exposure was seven years in state prison.
A second count in case No. 927 was dismissed as part of the plea agreement.
On November 9, 2012, the trial court granted defendant's Romero motion to dismiss the prior strike conviction (§ 1385). The court imposed an aggregate sentence of five years eight months, as it had indicated: in case No. 275, the upper term of three years on the possession count as the principal term, plus a one-year prior prison term enhancement; and in case No. 927, eight months (one-third of the midterm) on the possession for sale count, plus a one-year prior prison term enhancement. The court suspended execution of the sentence and granted three years' probation. The court explained:
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
"In reviewing defendant's criminal history, the prior strike allegation was extremely old, so it says from 1984, with the conviction in 1985. While the history is extensive since then, it involves a number of parole violations. These all appear to be either misdemeanor or drug-related offenses. There are no other crimes of violence. A criminal history appears to be decreasing in severity. [¶] Given all those factors, the court is finding that the defendant falls outside the spirit of the Three Strikes law and the court is exercising its discretion to strike the prior serious or violent felony conviction under [section] 1385 of the Penal Code.
"Back to the sentence. The court is suspending execution of the sentence that we just went through. What that means is there is that 5 year, 8 month prison term hanging there, and it would be prison. It would not be local commitment. If you violate probation, that sentence is what happens. There's no debate about whether it's a shorter time or a longer time. It is 5 years, 8 months."
After defendant allegedly violated probation, he appeared in court on June 5, 2013, and the hearing was continued. He appeared again on June 12, 2013, and on June 24, 2013, and the hearing was continued to July 15, 2013. On July 15, 2013, defendant failed to appear and a bench warrant was issued. Almost two years later, on July 14, 2015, defendant appeared in court. At the hearing on July 31, 2015, the trial court found defendant in violation of probation in both cases for failing to complete a treatment program at the Fresno Rescue Mission. The parties agreed defendant was eligible for relief under Proposition 47, and the court recalled the sentence in case No. 275 and reduced the possession count to a misdemeanor. The court then lifted the suspension on the previously imposed sentence and stated that the subordinate term on the possession for sale count in case No. 927 would become the principal term. The court again imposed the upper term of three years, plus a one-year prior prison term enhancement. The court stated only the following:
The parties state that the trial court then dismissed the misdemeanor in case No. 275. But our review of the record indicates the court dismissed a misdemeanor in the "case ending in 9671," which appears to be a probation violation misdemeanor offense for possession of a hypodermic needle (former Health & Saf. Code, § 11364.1, subd. (a)) committed on May 30, 2013, in case No. M13919671.
"The Court is lifting the prior stayed prison term in [case No.] 927. Count One in this matter will become the princip[al] term, which would be three years. That was enhanced by one year for the prison prior that was admitted, so it will actually be a four year term, not a four year eight month term."
DISCUSSION
Defendant contends the trial court failed to exercise its discretion when it resentenced him in 2015 because it "did not choose among the three possible terms," but "simply imposed the same term previously imposed when the other count was the principal term." Defendant says the court's statement at the 2015 resentencing hearing, above, suggests the court believed it had "no option but to impose the same term originally imposed. The court did not even note for the record whether three years was the lower, middle, or upper term. It simply stuck to its statement from more than two and a half years earlier: that if [defendant] violated probation, there would be 'no debate about whether it's a shorter time or a longer time.' " Defendant asserts that the court did not understand it had discretion to choose a new term of punishment for the principal term, erroneously believing it was bound by its 2012 sentence on a count that had since been reduced to a misdemeanor. Defendant says the court "might well have" chosen a lower term in 2015 if it had understood it had the discretion to do so, as "borne out by the reasons the court gave in 2012 when it granted, over the prosecutor's objection, [defendant's] Romero motion." Those reasons, defendant maintains, could have applied equally to the court's exercise of discretion in choosing a term at resentencing in 2015. Defendant also points out that the court failed to state reasons for its sentencing choices in both 2012 and 2015. I. Resentencing Under Proposition 47
Proposition 47, which went into effect on November 5, 2014, "makes certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors)." (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089, 1091.) "Proposition 47 also created a new resentencing provision: section 1170.18. Under section 1170.18, a person 'currently serving' a felony sentence for an offense that is now a misdemeanor under Proposition 47, may petition for a recall of that sentence and request resentencing in accordance with the statutes that were added or amended by Proposition 47. (§ 1170.18, subd. (a).)" (Id. at p. 1092.)
"A successful petition under section 1170.18 vests the trial court with jurisdiction to resentence the applicant, and in doing so the court is required to follow the generally applicable sentencing procedures in section 1170 et seq.," which include exercising discretion in choosing the lower, middle, or upper term and in resentencing on all counts of an aggregate sentence. (People v. Roach (2016) 247 Cal.App.4th 178, 184 (Roach); People v. McDowell (2016) 2 Cal.App.5th 978, 981-982; People v. Rouse (2016) 245 Cal.App.4th 292, 300.) When resentencing, "[t]he court may, for example, impose an upper-term punishment when the middle term had previously been imposed. [Citation.] A court may also impose a previously stayed sentence. [Citation.] And ... a court may choose to run counts consecutively that were previously run concurrently." (People v. Cortez (2016) 3 Cal.App.5th 308, 316.) The court may impose the same aggregate sentence, but not a greater one. (§ 1170.18, subd. (e) ["Under no circumstances may resentencing under [section 1170.18] result in the imposition of a term longer than the original sentence."].) In making its sentencing choice, the trial court must orally state its reasons on the record. (§ 1170, subds. (b) & (c); see California Rules of Court, rules 4.406(a), 4.420(e).)
All references to rules are to the California Rules of Court.
When, as in this case, the felony reduced to a misdemeanor under section 1170.18 is the conviction underlying the principal term, the trial court must select a new principal term on resentencing. (Roach, supra, 247 Cal.App.4th at p. 185.) The Roach court explained:
"We find some guidance from cases where a conviction underlying a principal term has been reversed on appeal and the matter remanded for resentencing. In that situation, the trial court on remand must 'select the next most serious conviction to compute a new principal term' and may also modify the sentences imposed on other counts as appropriate. [Citations.] In doing so, ' "the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. [Citations.] This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components." ' [Citations.] Similarly, where a petition under section 1170.18 results in reduction of the conviction underlying the principal term from a felony to a misdemeanor, the trial court must select a new principal term and calculate a new aggregate term of imprisonment, and in doing so it may reconsider its sentencing choices.
"In the context of reversal of a conviction underlying a principal term, a trial court on remand may impose an aggregate term of the same length as the original term, by selecting a different principal term and modifying the sentences imposed on other convictions. [Citations.] Similarly, barring some statutory language prohibiting the trial court from doing so, a trial court may impose the same aggregate term in resentencing under section 1170.18. Notably, the only express limit in section 1170.18—the prohibition on imposing a longer term—is the same limit that applies in resentencing following a reversal, due to the double jeopardy rule. [Citations.] Additional restrictions on a trial court's authority at resentencing could have been included in section 1170.18, but were not. We presume, as we must, the voters were aware of a trial court's authority to reconsider all sentencing choices upon resentencing, with the corresponding potential for imposition of the same aggregate term, and we will not 'rewrite the statute to conform to an
assumed intent that does not appear from its plain language.' " (Roach, supra, 247 Cal.App.4th at pp. 185-186.)
Applying the same analogy, we conclude that the trial court may consider the defendant's postconviction behavior, both good and bad, at resentencing after a successful section 1170.18 petition, as it may upon reversal and remand for resentencing. (See, e.g., Dix v. Superior Court (1991) 53 Cal.3d 442, 460 ["it is well settled that when a case is remanded for resentencing after an appeal, the defendant is entitled to 'all the normal rights and procedures available at his original sentencing' [citations], including consideration of any pertinent circumstances which have arisen since the prior sentence was imposed"]; Van Velzer v. Superior Court (1984) 152 Cal.App.3d 742, 744 (Van Velzer) ["the court may properly consider all matters affecting a defendant being resentenced up to and including the date of resentencing"]; People v. Bullock (1994) 26 Cal.App.4th 985, 990 ["There may be compelling reasons for ordering a probation report even when the defendant is ineligible for probation. The defendant's postconviction behavior and other possible developments remain relevant to the trial court's consideration upon resentencing."]; People v. Foley (1985) 170 Cal.App.3d 1039, 1047 [§ 1170, subd. (b) allows a sentencing court to consider postconviction prison diagnostic evaluation: "If a defendant's postconviction behavior in prison is relevant to setting his term at his original sentencing, we can see no reason why it would not be relevant to the setting of his term upon resentencing."].)
As with other discretionary sentencing decisions, "[d]efendants are entitled to 'sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,' and a court that is unaware of its discretionary authority cannot exercise its informed discretion." (People v. Brown (2007) 147 Cal.App.4th 1213, 1228-1229.) If the record is silent, however, the defendant has failed to sustain his burden of proving error. (People v. Davis (1996) 50 Cal.App.4th 168, 172.)
In this case, if defendant had only violated probation, the trial court would have had no choice but to lift the suspension on the previously imposed five-year eight-month sentence and order that sentence executed. (See rule 4.435(b); see also Van Velzer, supra, 152 Cal.App.3d at p. 744.) But defendant not only failed probation, he also succeeded in having one of his felonies reduced to a misdemeanor pursuant to section 1170.18. Because the reduced felony was the conviction underlying the principal term, the trial court selected a new principal term and resentenced defendant. In doing so, the court was entitled to consider defendant's postconviction behavior and exercise its discretion in choosing the upper, middle, or lower term. In imposing the upper term, the court failed to state its reasons for doing so. This silent record, however, does not permit us to presume the court did not recognize or exercise its discretion. (See People v. Gutierrez (2009) 174 Cal.App.4th 515, 527 ["we cannot presume error where the record does not establish on its face that the trial court misunderstood the scope of that discretion"].) The court was entitled to impose the upper term on the new principal term and nothing in the record establishes that the court failed to understand the scope of its discretion. As a result, we cannot say the trial court failed to recognize or exercise its discretion, and we therefore turn to defendant's alternative argument that he was prejudiced by counsel's failure to raise objections below. II. Ineffective Assistance of Counsel
Rule 4.435(b) provides: "On revocation and termination of probation under section 1203.2, when the sentencing judge determines that the defendant will be committed to prison or county jail under section 1170(h): [¶] (1) If the imposition of sentence was previously suspended, the judge must impose judgment and sentence after considering any findings previously made and hearing and determining the matters enumerated in rule 4.433(c). [¶] The 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 or in deciding whether to strike the additional punishment for enhancements charged and found. [¶] (2) If the execution of sentence was previously suspended, the judge must order that the judgment previously pronounced be in full force and effect and that the defendant be committed to the custody of the Secretary of the Department of Corrections and Rehabilitation or local county correctional administrator or sheriff for the term prescribed in that judgment."
Van Velzer explained: "[Former] Rule 435(b)(1) [current rule 4.435(b)] prohibits a sentencing court, upon revoking a defendant's probation, from considering circumstances existing after the time probation was granted. Subsequent events may not be considered where a valid judgment exists and the court is merely imposing a previously suspended sentence after probation fails. However, Van Velzer is not a failed probationer. The effect of our reversing his sentence was to restore him to his original position as if he had never been sentenced .... Thus, upon resentencing, Van Velzer is entitled to all the normal procedures and rights available at the time judgment is pronounced ([citation]; § 1203, subd. (b); [former] rule 419). This includes the right to a current probation report and any other information concerning Van Velzer while incarcerated." (Van Velzer, supra, 152 Cal.App.3d at p. 744.)
For reasons we have explained, we disagree with defendant's contention that rule 4.435(b) prohibited the trial court from considering his postconviction violation of probation as an aggravating factor in this case.
Claims of sentencing error may be forfeited by a defendant's failure to object at the time of sentencing. (People v. Gonzalez (2003) 31 Cal.4th 745, 751; People v. Scott (1994) 9 Cal.4th 331, 353.) Despite the forfeiture rule, however, we may address the merits of a defendant's claim in light of an alternative argument that defense counsel rendered ineffective assistance by failing to object below. (See People v. Williams (1998) 61 Cal.App.4th 649, 657.)
To establish ineffective assistance of counsel, a defendant must show (1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and (2) counsel's deficient performance was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 (Strickland); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) On review, we can adjudicate an ineffective assistance claim solely on the issue of prejudice, without determining the reasonableness of counsel's performance. (Strickland, at p. 697; Ledesma, at pp. 216-217; People v. Hester (2000) 22 Cal.4th 290, 296-297.)
To establish prejudice, the defendant must make a showing "sufficient to undermine confidence in the outcome" that but for counsel's deficient performance there was a "reasonable probability" that "the result of the proceeding would have been different." (Strickland, supra, 466 U.S. at p. 694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) "It is not sufficient to show the alleged errors may have had some conceivable effect on the trial's outcome; the defendant must demonstrate a 'reasonable probability' that absent the errors the result would have been different." (People v. Mesa (2006) 144 Cal.App.4th 1000, 1008.) Thus, even if the trial court errs in imposing sentence, an appellate court need not remand the case for " 'resentencing if "[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error." ' " (People v. Osband (1996) 13 Cal.4th 622, 728 (Osband); see People v. Champion (1995) 9 Cal.4th 879, 933-934 [trial court failed to state a reason for imposing consecutive sentences; failure was harmless and remand unnecessary because multiple circumstances in aggravation existed and it was "inconceivable that the trial court would impose a different sentence" upon remand for resentencing], overruled on another ground in People v. Combs (2004) 34 Cal.4th 821, 860; People v. Price (1991) 1 Cal.4th 324, 492 ["When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence 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. May (1990) 221 Cal.App.3d 836, 840 [there was no likelihood that requiring the trial court to state reasons for the consecutive sentence would reveal reversible error because the probation report clearly showed at least one factor supporting that sentencing choice; and there was no reasonable possibility the sentencing court would alter its conclusion if required to state reasons].)
In Osband, the trial court imposed the upper term based on several aggravating factors, and then imposed a consecutive sentence based on one of the same aggravating factors, a violation of the California Rules of Court. (Osband, supra, 13 Cal.4th at p. 728.) The Supreme Court stated this was error, but found no prejudice. (Ibid.) The court reasoned that "[o]nly a single aggravating factor is required to impose the upper term [citation], and the same is true of the choice to impose a consecutive sentence [citation]." (Id. at pp. 728-729.) Thus, "the [trial] court could have selected disparate facts from among those it recited to justify the imposition of both a consecutive sentence and the upper term, and on this record we discern no reasonable probability that it would not have done so." (Id. at p. 729.) --------
Here, the trial court erred in failing to state reasons on the record to support its imposition of the upper term. However, the probation report prepared for the July 31, 2015, hearing listed defendant's failure to appear in court, his failure to appear for office appointments, his failure to enroll in and complete a residential substance abuse program at the Fresno Rescue Mission, and his failure to drug test. He had been out of contact with the court and the probation department for two years and had completely failed to comply with any of his court orders. Consequently, the probation officer recommended prison.
Under these circumstances, the trial court's error was harmless. The court could have relied on the aggravating factors that defendant's performance on probation was unsatisfactory (rule 4.421(b)(5)) and that he had served a prior prison term (rule 4.421(b)(3)). Either factor was sufficient to support imposition of the upper term. (Osband, supra, 13 Cal.4th at pp. 728-729.) As noted above, the court acted within its discretion by considering defendant's postconviction behavior. Accordingly, defendant was not prejudiced by defense counsel's failure to object to the court's imposition of the upper term or its failure to state reasons for imposing the upper term. The upper term was justified and the court could have stated one or both of these reasons on the record. It is not reasonably probable the trial court would have imposed a lesser term if defense counsel had objected to the court's imposition of the upper term or its failure to state reasons for imposing it.
DISPOSITION
The judgment is affirmed.