IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
August 4, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
BOBBY ALLEN GUNSOLLEY, DEFENDANT AND APPELLANT.
Super. Ct. No. 05F177
The opinion of the court was delivered by: Raye, P. J.
P. v. Gunsolley
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Bobby Allen Gunsolley pled guilty to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) and, after violating his probation numerous times, was sentenced to an upper term of three years in state prison.
Defendant appeals, claiming the trial court abused its discretion by relying on his conduct following his last reinstatement on probation to impose the upper term. As defendant failed to make this objection in the trial court and has failed to establish that his trial attorney rendered ineffective assistance of counsel by failing to object on this basis, we reject this claim.
PROCEDURAL AND FACTUAL BACKGROUND
In December 2004 defendant submitted to a consensual search, resulting in the discovery of five baggies, each containing .3 gram of methamphetamine. Defendant denied the methamphetamine belonged to him but admitted methamphetamine use.
In February 2005 defendant pled guilty to possession of a controlled substance and was placed on Proposition 36 probation for three years. Within days of his sentencing, defendant submitted a positive drug test and thereafter did not comply with the other terms of his Proposition 36 probation, resulting in termination of the Proposition 36 probation and placement on three years' formal probation.
Subsequent petitions to revoke defendant's probation based on positive tests for methamphetamine were filed in January and March 2007. Probation was revoked and reinstated on condition that he serve 90 days in county jail and enter the "Addicted Offender Program." Probation was extended to expire in November 2011. Other than a revocation petition alleging alcohol use in September 2007, which was dismissed, defendant did well in this program.
In July 2009, following completion of the Addicted Offender Program, defendant was arrested for driving under the influence of alcohol in Trinity County, and another petition was filed to revoke his probation. In December 2009 defendant had a positive test for methamphetamine, triggering yet another revocation petition. Defendant admitted both allegations.
Defendant had prior felony convictions in 1998 and 2001, respectively, for attempting to elude a police officer and theft, as well as several misdemeanor convictions. These included hit-and-run driving and giving false information to a peace officer in 2006, while defendant was on Proposition 36 probation.
The probation officer recommended a three-year state prison term based on defendant's "prior performance on probation and the numerous interventions and support [he has] been afforded over the past five years and has not taken advantage of."
At the commencement of the sentencing hearing, defendant's attorney addressed the trial court, stating that defendant was "prepared to go to state prison for whatever term the Court is imposing" but was requesting to turn himself in at a later date. The court denied this request. The court noted the three-year prison recommendation and asked defendant's attorney if he was ready to proceed with judgment and sentencing, to which the attorney responded in the affirmative. The court then stated: "[Defendant] has been on probation for a long period of time. He's had ample opportunity to comply with the terms and conditions of his probation. He has regularly failed probation and the Addicted Offender Program. He started getting involved in criminal activity and was violated past the program, the graduation program and the terms and conditions of his probation. [¶] As a result I'm finding that pursuant to the Rules of Court, the circumstances in aggravation under [California Rules of Court, rule 4.]421, the fact that his prior convictions as an adult are numerous, the fact that he has been on probation when these miscellaneous offenses were committed, he's gotten numerous opportunities. That compared to the factors in mitigation, which are none, I'm going to determine the appropriate term for [defendant] would be the aggravated term of three years. [¶] So I'm going to deny a continuance of probation. [Defendant] is committed to state prison for a period of three years."
Defendant contends the trial court abused its discretion by considering events occurring after he was granted probation in selecting the upper term. (Cal. Rules of Court, rule 4.435(b)(1);*fn1 People v. Black (2009) 176 Cal.App.4th 145, 151 (Black).) He maintains the issue has not been forfeited despite his failure to object to the sentence in the trial court because he was not "afforded a meaningful opportunity to object" and that, if this court concludes otherwise, his trial attorney rendered ineffective assistance of counsel by failing to object. We disagree with these contentions.
In People v. Scott (1994) 9 Cal.4th 331, 353 (Scott), the California Supreme Court held that the "waiver doctrine" applies "to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices." As the court explained: "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." (Ibid.) "Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention." (Ibid.) "[I]t is inappropriate to allow any party to 'trifle with the courts by standing silently by, thus permitting the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable.'" (In re S.C. (2006) 138 Cal.App.4th 396, 406.)
However, a defendant must be given "a meaningful opportunity to object" to the court's sentencing determinations, which "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." (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 defendant's matter, the probation report recommended imposition of an upper term in state prison, citing defendant's "prior performance on probation." Defendant's numerous prior convictions had been noted as an additional aggravating factor in a probation report prepared for defendant's initial sentencing in the matter. The trial court cited both of these factors in support of its selection of the upper term. Although defendant's attorney interjected a comment during the sentencing regarding the amount of the restitution fine, he did not state any objection to the court's reasoning for imposing the upper term.
On appeal, defendant complains for the first time that the trial court abused its discretion by imposing a three-year sentence and maintains he was not afforded an adequate opportunity to object to the sentence imposed. But defense counsel was aware of the possibility that an upper term would be imposed based on the probation report's recommendation and the trial court's reference to that recommendation prior to pronouncing sentence. By stating that defendant was "prepared to go to state prison for whatever term the Court is imposing" and making no comment when the court referred to the three-year recommendation, defense counsel, in essence, acquiesced to the imposition of the upper term. If defense counsel disagreed with the reasons relied on by the court for its selection of the upper term, he could have interjected an objection, as he did regarding the amount of the restitution fine. Failure to do so forfeited the issue on appeal.
Defendant argues, in the alternative, that he received ineffective assistance of counsel because his trial attorney failed to object to the trial court's purported reliance on circumstances arising after the final grant of probation when sentencing defendant to the upper term. To warrant relief on this basis, defendant must establish both that counsel's representation fell below prevailing professional norms and that, in the absence of counsel's failings, a more favorable result was reasonably probable. (Cf. People v. Ledesma (1987) 43 Cal.3d 171, 215-218; Strickland v. Washington (1984) 466 U.S. 668, 693-694 [80 L.Ed.2d 674, 697-698].)
Defendant does not contend there is insufficient evidence to support the two aggravating factors noted by the trial court when imposing the upper term, nor could he. Defendant had two felony convictions and several misdemeanor convictions prior to May 2007, when his probation was reinstated for the last time. The trial court could properly consider defendant's performance on probation from the time it was originally granted until it was reinstated for the final time in May 2007. (Black, supra, 176 Cal.App.4th at p. 151.) Thus, his criminal convictions were already numerous before his most recent reinstatement on probation. (See rule 4.421(b)(2).) Likewise, defendant's performance on probation prior to being reinstated on probation in May 2007 was sufficiently poor to constitute an aggravating circumstance. (Rule 4.421(b)(5).) He committed new offenses and tested positive for methamphetamine while on Proposition 36 probation, and again violated his probation by submitting positive drug tests in January and March 2007. By this time, defendant was also on misdemeanor probation for the hit-and-run incident. The court found no circumstances in mitigation, a finding that defendant has not challenged. Thus, defendant has failed to show that a more favorable result was reasonably probable had counsel objected in the manner defendant now urges he should have.
We note, too, that although the trial court's comments may have referenced defendant's criminal behavior and poor performance on probation both prior to and after his last reinstatement on probation, these comments prefaced its denial of further probation as well as its imposition of the upper term. Consideration of defendant's behavior throughout the entire period of probation was relevant to the court's determination of whether to reinstate defendant again on probation. Thus, defendant has failed to demonstrate that the court relied on his conduct during the final probationary period for anything other than a proper purpose.
Defendant's reliance on People v. Colley (1980) 113 Cal.App.3d 870 is misplaced. In that case, there was only one period of probation (following a recall of the defendant's prison sentence pursuant to Penal Code section 1170, subdivision (d)) to which the court's comments about the defendant's poor performance on probation could have pertained. Here, defendant was afforded two opportunities to succeed on probation prior to his most recent grant, and the trial court properly could consider this an aggravating factor for purposes of selecting a prison term.
In sum, defendant has failed to establish that his trial counsel's performance was defective in any way.
The judgment is affirmed.
We concur: BUTZ , J. MAURO, J.