Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Michael Pulos, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD244590) APPEAL from a judgment of the Superior Court of San Diego County, Louis R. Hanoian, Judge. Affirmed. Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
Following the remand in People v. Buckley (Oct. 21, 2015, D066227) [nonpub. opn.] (Buckley), the trial court resentenced Thomas Conaty Buckley to 15 years in prison. In this appeal, Buckley contends that his due process rights were violated because the court did not have a sufficiently current probation report at the time of resentencing. We disagree and will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2013, a jury convicted Buckley of simple stalking of K.C. (Pen. Code, § 646.9, subd. (a); count 6), of simple stalking of M.L. (§ 646.9, subd. (a); count 1) and of stalking M.L. with a court order in effect (§ 646.9, subd. (b); counts 2-3). In separate proceedings, Buckley admitted he had suffered three prior prison convictions as charged in the amended information. In June 2014, the court sentenced Buckley to 19 years in state prison, as follows: 10 years on count 1 (the upper term of five years, doubled for the strike prior); three consecutive two-year terms on counts 2, 3 and 6 (each term being one-third of the middle term, doubled for the strike prior); and three consecutive one-year terms for each of his three prior prison convictions.
Further undesignated statutory references are to the Penal Code.
In Buckley, we vacated the convictions and sentences on counts 1 and 2, affirmed the judgment in all other respects and remanded the matter to the superior court with instructions to resentence Buckley. In anticipation of the April 2016 resentencing hearing on remand, Buckley submitted a handwritten letter and his attorney submitted a Romero motion and a sentencing brief; the People submitted a sentencing brief; and the probation department submitted its original 25-page report from the June 2014 sentencing and a six-page supplemental report.
In People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero), the Supreme Court ruled that the trial court has discretion under section 1385 to strike a prior "strike" in the interest of justice.
Defense counsel requested probation or in the alternative seven years in prison; the district attorney requested 15 years; and the probation department recommended 15 years. In Buckley's letter to the court, Buckley took responsibility for his actions, apologized to the victims, and advised the court that he was "working on [his] issues" and explained his "plan" to return to Florida after completing his sentence.
The same judge who presided over the 2013 trial and pronounced the original sentence in 2014 presided at the April 2016 proceedings.
In the Romero motion, defense counsel argued that the court should strike the prior because: The prior was remote in time, having occurred 12 years before the charges in the current conviction; the nature of the stalking offenses underlying the current conviction did not involve force or violence; and at the time of the offenses Buckley had "severe alcohol problems." In this latter regard, counsel suggested that "depression, anxiety, alcoholism and the traumatic effect the combination of such" had contributed significantly to both the current and prior crimes.
At the hearing on the Romero motion, defense counsel encouraged the court to consider Buckley's good behavior in prison during the almost two years following the original sentencing. Counsel explained that the probation department twice contacted the prison to obtain a copy of Buckley's prison record, but received no response. Counsel then described Buckley's successful completion of eight weeks of a nine-week course that incorporates concepts from Narcotics Anonymous, Alcoholics Anonymous and psychological counseling. Counsel concluded by reciting many of the factors in the written submissions to the court that, as appropriate under Romero, dealt with " 'defendant's background,' 'the nature of his present offenses,' and other 'individualized considerations.' " (Romero, supra, 13 Cal.4th at p. 531.)
Counsel acknowledged to the trial court that he was unaware of any legal authority that required the court to consider Buckley's postconviction behavior in prison on resentencing.
The updated probation report confirmed the department's efforts and the prison's lack of response.
After listening to argument from the deputy district attorney, the court denied Buckley's Romero motion.
The court then asked Buckley's attorney whether there was "any legal cause why judgment should not be pronounced." Counsel replied, "No, Your Honor," and waived arraignment for judgment and sentencing.
In response to the court's invitation to counsel for comments regarding sentencing, Buckley's attorney began by incorporating "a lot of what I said for the Romero motion . . . , including all the things he's done in prison, trying to get his life on track again." (Italics added.)
The deputy district attorney began his comments with a quotation from the probation department's original (June 2014) report, as follows: " 'The defendant's history of compliance within the community while released on probation or parole has been a big failure. Supervised release has no deterring effect upon this defendant. He is a threat to the community, he lacks any moral compass. . . . The defendant's claim that alcohol is to blame for his conduct is disingenuous. Alcohol is simply his venue to further indulge his predatory nature.' " The People's position was that, although "it's admirable . . . if he is, in fact, getting help for his alcoholism," the purpose of the sentence is to protect the public. According to the prosecutor, Buckley previously has shown the court what he does when he is released, and there was evidence that even while in prison he managed to call the victims in this case.
Buckley's record began in 1989 with a plea of no lo contendere to a petty theft charge and continued with various convictions resulting in prison and probation in 1995, 1996, 2000, 2002, 2005 and 2009 and violations of parole with a return to prison in 2001, 2002, 2005, 2008, 2010 (three times), 2011 and 2012
The court found that the posture of the case had not changed in the almost two years since the original sentencing — even taking into consideration that Buckley was pursuing certain programs in prison. The court accordingly ruled and sentenced Buckley as follows: With the underlying strike, Buckley was ineligible for probation; and Buckley would be required to serve 15 years in prison. Buckley timely appealed.
The court continued: "Even if he were eligible for probation, I would not be granting probation in this case under any terms or circumstances."
The court sentenced Buckley to 10 years on count 3 (the upper term of five years, doubled for the strike prior); a consecutive two-year term on count 6 (one-third of the middle term, doubled for the strike prior); and three consecutive one-year terms for each of the three prior prison convictions. The court also imposed various fees, fines and assessments and calculated certain credits for time served — none of which are at issue in this appeal.
" 'The very settled rule of appellate review is a trial court's order/judgment is presumed to be correct, error is never presumed, and the appealing party must affirmatively demonstrate error on the face of the record.' " (People v. Selivanov (2016) 5 Cal.App.5th 726, 795.)
On appeal Buckley presents one argument: The sentence violated Buckley's due process rights, because the court did not have a probation report that included an updated report from the prison where Buckley had been incarcerated prior to the resentencing. In this appeal, Buckley did not meet his burden of establishing reversible error. By failing to object in the trial court, Buckley forfeited his right to appeal on the ground raised here. Even if we were to consider the merits of Buckley's argument, the result would be no different. Finally, even if we were to assume that the trial court erred, any such error would have been harmless. A. Buckley Forfeited His Right to Appellate Review of the Issue Presented
The general rule is that an appellate court ordinarily will not consider " ' "procedural defects or erroneous rulings" ' " in connection with relief sought or defenses asserted " ' "where an objection could have been, but was not presented to the lower court." ' " (People v. Jenkins (2000) 22 Cal.4th 900, 1000; see 6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Reversible Error, § 41, p. 571 [on appeal from a criminal conviction, a defendant may be precluded from raising error on appeal if defendant "fail[ed] to object in the lower court in some appropriate manner"].) A more specific rule is that a defendant's failure to object to the trial court's discretionary sentencing decision — i.e., "sentences which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner" — forfeits the right to appellate review of such issues. (People v. Scott (1994) 9 Cal.4th 331, 354.)
Even more specifically still, where (as here) a defendant is ineligible for probation, the failure by the defendant to request a supplemental probation report or to object to proceeding without one results in a "waiver of a supplemental report in the trial court and forfeiture of the right to object in the absence of such a report on appeal." (People v. Franco (2014) 232 Cal.App.4th 831, 834, italics added (Franco); accord, People v. Murray (2012) 203 Cal.App.4th 277, 289, fn. 12 (Murray), disapproved on other grounds in People v. Gutierrez (2014) 58 Cal.4th 1354, 1370-1371; People v. Johnson (1999) 70 Cal.App.4th 1429, 1431-1432.)
Buckley was ineligible for probation because of his prior strike conviction (see §§ 667, subd. (c), 1170.12, subd. (a)(2)), and he so acknowledges on appeal.
A waiver is the intentional relinquishment of a known right, whereas a forfeiture is what results from the unintentional failure to preserve a claim. (People v. Simon (2001) 25 Cal.4th 1082, 1097, fn. 9.)
Buckley argues that the forfeiture rule should not apply here, because trial counsel told the court at the sentencing hearing that there was relevant information that the probation report should have included. Such a statement to the trial court is insufficient to preserve the issue for appeal. After presenting the entire argument regarding Buckley's recent behavior in prison in the context of the Romero motion — including the probation department's unsuccessful efforts to obtain an updated report from the prison — defense counsel made the affirmative, perhaps even strategic, decision to proceed with the sentencing. At the end of the Romero motion, in response to the court's inquiry, counsel stated that there was no legal cause why the court should not proceed with sentencing, and counsel waived arraignment for judgment and sentencing.
Indeed, the assertion of Buckley's argument in the context of the present appeal demonstrates why the argument should be rejected: A defendant like Buckley should not be allowed to first make what is essentially an offer of proof to the trial court (regarding his recent behavior while incarcerated) and then, when the court did not impose the sentence Buckley thought was appropriate, argue on appeal that the court erred by pronouncing sentence without a more formal showing. Stated differently, Buckley cannot object for the first time on appeal because information he believes is relevant was not presented to the trial court; to have preserved the issue for appellate review, Buckley was obligated to object first in the trial court and then seek appropriate relief on appeal if his objection was overruled and he believed the sentence would have been more favorable had the objection been sustained and the information provided.
Under these circumstances, we conclude that Buckley forfeited appellate review of the issue whether the trial court erred in sentencing him without a report from the probation department that included information from the prison in which he was incarcerated prior to the resentencing. B. Even If Buckley Had Not Forfeited Appellate Review of the Issue He Presents on Appeal, He Did Not Meet His Burden of Establishing Reversible Error
Buckley argues that the trial court erred by failing to order an updated probation report that included information regarding his behavior while incarcerated after the June 2014 sentencing. Buckley relies on People v. Brady (1984) 162 Cal.App.3d 1 (Brady), which holds: "[U]pon remand for resentencing, even when the defendant is ineligible for probation, if the resentencing court has discretion to alter the length of the defendant's imprisonment, it must obtain a new, updated probation report, including information regarding the defendant's behavior while incarcerated during the pendency of any appeal, before proceeding with the resentencing." (Id. at p. 7.) As we explain, however, Brady is inapplicable, and the trial court did not abuse its discretion in proceeding with sentencing Buckley without requiring the probation department to provide an updated report that included his behavior while incarcerated.
Buckley does not argue — and we express no opinion regarding — whether the updated April 2016 probation report was sufficient or whether the court otherwise erred in resentencing Buckley given the existing record.
Section 1203, subdivision (g) provides that where "a person is not eligible for probation, the judge . . . , in his or her discretion, may direct the probation officer to investigate all facts relevant to the sentencing of the person." (Italics added.) Since that provision "confers discretion upon the trial court to decide whether a probation report should be provided for a probation-ineligible defendant" — including "resentencing after remand" (People v. Bullock (1994) 26 Cal.App.4th 985, 989 (Bullock)) — we will review Buckley's sentence for an abuse of discretion. (Id. at pp. 987, 989; Franco, supra, 232 Cal.App.4th at p. 835.)
Initially, pursuant to the express language of the applicable statute — namely, "the judge . . . may direct the probation officer to investigate" (§ 1203, subd. (g), italics added) — the sentencing court is not required to order an updated report. "Clearly the Legislature knows how to make a referral for a probation report mandatory, and it has done so in some cases. Its failure to do so when the defendant is not eligible for probation reflects a legislative decision that a report is not required in every instance." (Bullock, supra, 26 Cal.App.4th at p. 989.)
Here, at the time of resentencing, Buckley was ineligible for probation as a result of his prior strike conviction, and he does not contend otherwise. (See fn. 8, ante.) Brady, supra, 162 Cal.App.3d 1, does not help Buckley, because the Brady court (i.e., the 5th Dist.) expressly abrogated its holding 10 years later in Bullock, supra, 26 Cal.App.4th 985: "We believe Brady was incorrect in divesting the trial court of its discretionary power and mandating a probation referral in all cases" (id. at p. 989); "Because we conclude Brady incorrectly strips the trial court of discretion, we will no longer follow it" (id. at p. 987).
We agree with Bullock, supra, 26 Cal.App.4th 985, and the cases that have followed it. Where, as here, a defendant is ineligible for probation, "neither statute nor rule of court require[s] the trial court to obtain a supplemental report" upon resentencing following a remand. (Franco, supra, 232 Cal.App.4th at p. 834 [citing Bullock and other authorities]; see Murray, supra, 203 Cal.App.4th at p. 289; People v. Dobbins (2005) 127 Cal.App.4th 176, 180 (Dobbins); People v. Llamas (1998) 67 Cal.App.4th 35, 39-40.)
Although the Third District initially followed Brady in 1985 (People v. Foley (1985) 170 Cal.App.3d 1039, 1045-1050), the following year the same court changed course in People v. Webb (1986) 186 Cal.App.3d 401 (Webb). In Webb, the Third District rejected the rationale of Foley, focused on the specific language of the statute, and concluded that when a defendant is ineligible for probation on resentencing a referral to the probation department is not mandatory but is a matter "statutorily entrusted to the discretion of the trial court." (Webb, at p. 409.) We agree with Webb and the cases that have followed it — which include Bullock, supra, 26 Cal.App.4th at p. 988. (See People v. McClure (1987) 191 Cal.App.3d 1303, 1306; People v. Goldstein (1990) 223 Cal.App.3d 465, 470-472; People v. Grimble (1987) 196 Cal.App.3d 1058, 1062; People v. Tatlis (1991) 230 Cal.App.3d 1266, 1272.)
At that time, the relevant portion of the section 1203, subdivision (g) was almost identical to what is found in current section 1203, subdivision (g) (quoted in the text, ante), and provided: "If a person is not eligible for probation, the judge may, in his discretion, refer the matter to the probation officer for an investigation of the facts relevant to the sentencing of the person." (Stats. 1982, ch. 247, § 1, p. 795; see Webb, supra, 186 Cal.App.3d at p. 409.) "The statute could not be more clear and unambiguous and in the absence of constitutional infirmity, and none appears, we must give effect to the legislative intent." (Webb, at p. 409.)
Tellingly, Buckley does not mention the Bullock opinion. This is despite both the express acknowledgement by the Fifth District in Bullock that it incorrectly decided its 1984 Brady decision (Bullock, supra, 26 Cal.App.4th at p. 989) and the People's significant reliance on Brady in their brief.
We thus conclude that, even if we were to consider Buckley's appeal on its merits, Brady would be inapplicable, and Buckley would not have met his burden of establishing that the trial court abused its discretion in sentencing Buckley without requiring the probation department to provide a report that included his behavior while incarcerated. C. Even If the Trial Court Erred, Any Such Error Would Have Been Harmless
Even if we were to assume trial court error — i.e., were we to assume that Buckley had not forfeited his argument on appeal and on the merits the trial court had erred — Buckley did not meet his burden of establishing that such error was prejudicial.
The California Constitution contains a provision specifically addressed to the issue of reversible error and provides in relevant part: "No judgment shall be set aside, or new trial granted, in any cause, . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) Our Supreme Court has referred to the application of this clause as "the uniform standard of reversible prejudice applicable to most forms of state law trial error." (People v. Breverman (1998) 19 Cal.4th 142, 156, fn. 6 (Breverman).)
Buckley contends that the error he asserts in this appeal is of federal constitutional magnitude, resulting in a presumption of prejudice that requires the People to establish that the error was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24. We disagree. Because there is "no federal constitutional right to a supplemental probation report," the "alleged error implicates only California statutory law." (Dobbins, supra, 127 Cal.App.4th at p. 182.) Because the alleged error implicates only California law, we apply the standard for prejudicial error set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (Breverman 2., supra, 19 Cal.4th at pp. 149, 165.)
Under this standard, an appellate court must affirm the judgment unless it concludes that there is a reasonable probability that, in the absence of the error, the appellant would have obtained a more favorable result. (Watson, supra, 46 Cal.2d at p. 836.) In this context, a "reasonable probability" is one sufficient to undermine confidence in the outcome of the proceedings. (In re Neely (1993) 6 Cal.4th 901, 909.) The appellant bears the burden of establishing the prejudice necessary for reversible error under state law. (People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11.)
Buckley's entire argument as to prejudice reads as follows: "There was no dispute that the offenses against both victims took place while [Buckley] was abusing alcohol. The only relevant new fact for the judge to consider at the resentencing involved [Buckley]'s behavior and decisions made while in prison. Had the court been informed that [Buckley] took positive steps to address the root cause of his criminality[,]" there is a reasonable probability that, in the absence of the error, he would have obtained a more favorable sentence. This showing is insufficient, given the record on appeal.
Here, we do not know what might be in Buckley's prison record, and we will not speculate. Nonetheless, we know that the focus of Buckley's prejudice argument is the extent of the court's appreciation of Buckley's recent behavior — and specifically his decision to address his alcoholism — without a report from the prison where Buckley most recently had been incarcerated. We also know that, at the time of the sentencing, the trial court was aware of and considered Buckley's behavior in prison: The court had the benefit of defense counsel's offer of proof that while incarcerated Buckley successfully completed eight weeks of a nine-week course that incorporated concepts from Narcotics Anonymous, Alcoholics Anonymous and psychological counseling; the court also had a letter from Buckley in which he described what he had been doing in prison; and finally, the court expressly "acknowledge[d]" that it "underst[oo]d" that Buckley was pursuing certain programs in prison.
We reject Buckley's suggestion that, because defense counsel mentioned "the key information" during the argument on Buckley's Romero motion, the timing of the presentation "lacked the impact it would have had if included in the probation officer's recommendation that was later adopted by the court." Initially, such a suggestion is speculative. In any event, at the beginning of the sentencing hearing (which commenced immediately at the conclusion of the court's oral ruling on the Romero motion), defense counsel's first argument was that "a lot of what I said for the Romero motion also applies for sentencing, including all the things [Buckley]'s done in prison, trying to get his life on track again." (Italics added.)
Admirably, Buckley took responsibility for his actions and apologized to the victims. However, Buckley said nothing about any efforts to combat alcoholism, despite advising the court generally that, while incarcerated, he was "working on [his] issues" and "tak[ing] a 'self-help' class geared to [becoming] a better person." --------
Given this record, the trial court in fact was advised of and considered what Buckley hoped would be in his prison record. Thus, any error in sentencing Buckley without requiring the probation department to provide a report that included his behavior while incarcerated would have been harmless.
For these reasons, Buckley did not meet his burden of showing a reasonable probability that, in the absence of the asserted error, he would have obtained a more favorable result. Accordingly, even if we were to assume that the court erred as argued by Buckley, Buckley would not have met his burden of establishing reversible error.
The April 22, 2016 judgment is affirmed.
O'ROURKE, J. WE CONCUR: HUFFMAN, Acting P. J. AARON, J.