IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
December 7, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JAIME MIGUEL MORGUTIA, JR., DEFENDANT AND APPELLANT.
Appeal from a judgment of the Superior Court of Orange County, (Super. Ct. No. 07CF1041) M. Marc Kelly, Judge.
The opinion of the court was delivered by: Rylaarsdam, Acting P. J.
P. v. Morgutia
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Jaime Miguel Morgutia, Jr. of reckless driving while evading the police (Veh. Code, § 2800.2; count 1), vandalism (Pen. Code, § 594, subd. (a)(1); count 3), and street terrorism (Pen. Code, § 186.22, subd. (a); count 4). The trial court suspended imposition of sentence and placed him on probation. Defendant appealed and we reversed the conviction on count 4, but otherwise affirmed. (People v. Morgutia (Jul. 17, 2009, G040415) [nonpub. opn.].) The prosecution subsequently chose not to retry defendant on count 4 and the court dismissed that charge.
After the probation department filed a petition alleging he violated the terms of his probation, defendant admitted the allegations. The court revoked probation and sentenced him to a three-year, eight-month state prison sentence. Defendant again appeals, contending the trial court abused its discretion by imposing the three-year upper term on count 1. In a supplemental brief, he seeks a recalculation of conduct credits under the recent amendment to Penal Code section 4019. We conclude the trial court abused its discretion by imposing the upper term on count 1 and reverse the judgment. As a result, it is unnecessary to decide the second issue.
The probation department alleged defendant was arrested for driving under the influence of alcohol while out past curfew, and he failed to satisfy his community service requirement. According to a department report, before his arrest and conviction on the underlying charges, defendant had no criminal record. The department recommended maintaining defendant on probation with an additional 90-day jail term.
Defendant admitted the petition's allegations and the prosecutor submitted on the probation department's recommended disposition. Citing the probation report's reference to defendant's numerous contacts with the police during his short stint on probation, his new tattoos, plus his after curfew drunk driving arrest and failure to perform community service, the court rejected the recommended disposition, revoked defendant's probation, and imposed sentence.
On count 1, the court imposed the three-year upper term for the following reasons: "[Y]ou have engaged in violent conduct that indicates a serious danger to society, the way you drove that car, your prior convictions as an adult are now increasing in seriousness, the fact that you willfully violated the law on probation, you were on probation when the crime was committed and your performance on probation has been poor to say the least." Noting "[t]he crimes and their objectives were predominantly independent of each other," the court sentenced defendant to a consecutive eight-month term on count 3. After issuing its sentence the court asked for a calculation of defendant's credits. The court then inquired of defense counsel, "anything else on behalf of your client," and counsel said "[n]o. . . ."
"When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court," and it "shall select the term which . . . best serves the interests of justice." (Pen. Code, § 1170, subd. (b).) "Even with the broad discretion afforded a trial court," its "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.]" (People v. Sandoval (2007) 41 Cal.4th 825, 847.)
Penal Code section 1170, subdivision (b) further declares "[t]he court shall set forth on the record the reasons for imposing the term selected . . . ." (See Cal. Rules of Court, rules 4.406(a) & (b)(4), 4.420.) "[A] court needs only one factor to impose the aggravated term. [Citation.]" (People v. Kelley (1997) 52 Cal.App.4th 568, 581.) And it "is presumed to have considered all relevant factors unless the record affirmatively shows the contrary. [Citations.]" (Id. at p. 582; see Cal. Rules of Court, rule 4.409.)
"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. [Citation.]" (People v. Price (1991) 1 Cal.4th 324, 492.) Thus, "a trial court will abuse its discretion . . . if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision. [Citations.]" (People v. Sandoval, supra, 41 Cal.4th at p. 847.)
At sentencing, defense counsel did not object to the reasons stated by the trial court for imposing the upper term on count 1. The Attorney General claims this failure constitutes a waiver of the issue. Defendant disagrees, claiming he "was given no notice that the trial court intended to impose the upper term."
The waiver rule prohibits a party from asserting on appeal "the trial court's failure to properly make or articulate its discretionary sentencing choices," such as "stat[ing] reasons [that] allegedly do not apply to the particular case" (People v. Scott (1994) 9 Cal.4th 331, 353), if the party is afforded "a meaningful opportunity to object . . ." (id. at p. 356). Scott noted a meaningful opportunity to object "can occur only if, 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.) "The parties are given an adequate opportunity to seek such clarifications or changes if, at any time during the sentencing hearing, the trial court describes the sentence it intends to impose and the reasons for the sentence, and the court thereafter considers the objections of the parties before the actual sentencing. The court need not expressly describe its proposed sentence as 'tentative' so long as it demonstrates a willingness to consider such objections." (People v. Gonzalez (2003) 31 Cal.4th 745, 752.)
In Gonzalez, the Supreme Court found the waiver rule applied. It held, although "[t]he trial court prefaced its sentence with the words, 'Defendants are sentenced as follows[,]'" which "may have implied to the parties that the trial court had already made its sentencing decision," "after the trial court . . . stated defendants' sentences and its reasons for them, defendants did object, although not on . . . the grounds they now wish to raise on appeal," and "[t]he court did not tell defendants their objection was untimely or impermissible; instead, it considered and rejected the objection." (People v. Gonzalez, supra, 31 Cal.4th at p. 755.)
Here, it is clear that defendant and his attorney knew the trial court was seriously considering revoking probation and imposing a prison term. The court noted defendant had previously "cash[ed] in" his good will when it reluctantly granted him probation. Further, it described the probation department's recommended disposition of maintaining defendant on probation with an additional 90 days in jail as "a joke."
Defendant claims the court did not give any advance indication it would impose the upper term. But, under the recent amendments to the determinate sentencing law, a trial court is required to provide a statement of reasons regardless of which of the three possible terms it selects. (People v. Sandoval, supra, 41 Cal.4th at p. 847; Cal. Rules of Court, rule 4.406(b)(4).) Thus, the parties clearly knew that if the court imposed a state prison sentence, it would have to explain its sentencing choice.
Alternatively, defendant claims that, if the waiver rule applies here, his trial attorney failed to provide effective assistance of counsel by not objecting to the trial court's statement of reasons for imposing the upper term. "To prevail on an ineffective assistance of counsel claim, the defendant must show that (1) 'counsel's performance fell below a standard of reasonable competence' and (2) 'prejudice resulted.' [Citations.] Thus, '[e]ven where deficient performance appears, the conviction must be upheld unless the defendant demonstrates prejudice, i.e., 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."'" [Citations.]' [Citation.]" (People v. Le (2006) 136 Cal.App.4th 925, 935.)
To show prejudice here defendant must establish the trial court would have altered its sentencing choice had his trial attorney timely objected to the reasons stated for imposing the upper term. Consequently, this requires us to consider the merits of defendant's appellate claim on count 1.
3. The Trial Court's Sentencing Decision
The court imposed the upper term on count 1, finding defendant "engaged in violent conduct that indicates a serious danger to society, [by] the way [he] drove that car"; his "prior convictions as an adult are now increasing in seriousness"; he was "on probation when the crime was committed"; he "willfully violated the law on probation"; and his "performance on probation has been poor . . . ."
Except for the first reason stated, the court clearly relied on invalid grounds to impose the upper term. California Rules of Court, rule 4.435(b)(1) declares that "[o]n revocation and termination of probation, . . . when the sentencing judge determines that the defendant will be committed to prison: [¶] . . . [¶] 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 . . . ." Since defendant had no criminal record before the crimes leading to this prosecution, the trial court erroneously relied on his postprobation conduct when mentioning the increasing seriousness of his prior convictions, his probationary status, and his poor performance while on probation.
But, as noted, "a single valid factor in aggravation is sufficient to justify the imposition of the upper term. [Citation.]" (People v. Forster (1994) 29 Cal.App.4th 1746, 1758.) And, a sentencing court's consideration of invalid factors requires reversal only when a reasonable probability exists the sentencing court would have chosen a different sentence in the absence of the improperly considered factors. (People v. Price, supra, 1 Cal.4th at p. 492.)
The first reason mentioned by the trial court is based on California Rules of Court, rule 4.421(b)(1). It states the "[c]ircumstances in aggravation" supporting the imposition of an upper term (Cal. Rules of Court, rules 4.421, 4.420(a)) include a defendant who "has engaged in violent conduct that indicates a serious danger to society . . . ." (Cal. Rules of Court, rule 4.421(b)(1).)
Vehicle Code section 2800.2, subdivision (a) makes it a crime for "a person [to] flee or attempt to elude a pursuing peace officer" by "driv[ing] in a willful or wanton disregard for the safety of persons or property . . . ." The phrase "willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count . . . occur, or damage to property occurs." (Veh. Code, § 2800.2, subd. (b).)
Defendant acknowledges "the evasion of a[ police] officer is . . . inherently dangerous," but argues there was "nothing inherently violent about [his] offense . . . ." The Attorney General claims his "conduct posed a danger to the public" because he "could have 'seriously hurt or killed' someone."
We conclude defendant has the better argument. As noted in our prior opinion his conviction for evading the police resulted from speeding through city streets around midnight at up to 60 miles per hour, during which he ran stop signs and struck a parked car. (People v. Morgutia, supra, G040415, at p. 2.) His driving was certainly dangerous, but it did not constitute "violent conduct . . . ." (Cal. Rules of Court, rule 4.421(b)(1); see People v. Howard (2005) 34 Cal.4th 1129, 1138-1139 [rejecting prior cases holding a Vehicle Code section 2800.2 conviction constituted inherently dangerous felony supporting a murder conviction under second degree felony-murder rule].) To the extent it might be argued "willful or wanton disregard for the safety of persons or property" suggests defendant engaged in violent behavior, "[a] fact that is an element of the crime upon which punishment is being imposed may not be used to impose a greater term." (Cal. Rules of Court, rule 4.420(d); see also People v. Key (1984) 153 Cal.App.3d 888, 901, fn. 18 ["To the extent that violence does not exceed the force necessary to consummate the crime(s), it may not be used to aggravate the base term"].)
None of the trial court's reasons support its choice of the upper term. Thus, the court abused its discretion by imposing the upper term for the reasons stated and a timely objection may have cured this error.
The judgment is reversed and the matter remanded to the superior court for resentencing.
O'LEARY, J. IKOLA, J.
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