IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
September 20, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
STEPHEN SHERRON, DEFENDANT AND APPELLANT.
(Super. Ct. No. 08F08152)
The opinion of the court was delivered by: Hoch , J.
P. v. Sherron
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Stephen Sherron was part of a group of young men who robbed a man at gunpoint during a power outage at the victim's apartment complex. Convicted by jury of armed robbery and assault with a firearm, defendant was sentenced to a three-year state prison term.
On appeal, defendant contends his trial counsel rendered ineffective assistance at sentencing for failing to object to the trial court's stated reasons for denying him probation. We affirm.
In August 2008, shortly after midnight, the North Highlands neighborhood of Sacramento experienced a power outage. When the lights went out, 18-year-old Chris Marshall stepped outside his apartment to investigate the extent of the blackout. On his way to the street corner adjacent to the apartment complex, Marshall noticed a group of young men hanging out next to one of the apartment buildings.
The apparent leader of this group, Eric Castaneda, a young man who also lived in the complex, approached Marshall. The two briefly engaged in "small talk" before Castaneda left to rejoin the group, which included 19-year-old defendant. When Marshall tried to return to his apartment, he was again approached by Castaneda. This time, the group followed and surrounded Marshall while Castaneda asked whether he wanted to buy any drugs or alcohol. Marshall declined, prompting Castaneda to pull out a revolver. Castaneda hit Marshall in the mouth with the gun while the other group members held his arms and went through his pockets. Marshall was robbed of his cell phone, keys, wallet, and pocket knife.
As already indicated, defendant was convicted by jury of armed robbery and assault with a firearm. The jury also found that a principal in the commission of these crimes was armed with a firearm. The probation report recommended that defendant be sentenced to state prison for the low term of two years, plus an additional year for the firearm enhancement.
Defendant submitted a statement in mitigation requesting a grant of probation and a county jail sentence. He argued several mitigating circumstances supported a grant of probation, i.e., no prior record of criminal conduct, reduced culpability due to physical disability and cognitive impairment, youthful age, and the fact that the victim was not seeking a prison commitment.
In support of his reduced culpability, defendant submitted a neuropsychological evaluation conducted by Dr. John J. Wicks. The report noted, among other things, that defendant was removed from his mother's home by social services at an early age, was placed in a series of foster and group homes, "had problems with normal development throughout his life," and was also diagnosed with epilepsy and placed on anti-seizure medications. The report then provided the results of several cognitive tests. Based on these test results, Dr. Wicks concluded that defendant "clearly has serious neuropsychological impairments which meet the criteria for a formal diagnosis of Cognitive Disorder; it is very likely that he may fit the criteria for a diagnosis of Mental Retardation. His IQ is within the accepted range and many of his other neuropsychological functions fall well into the Extremely Low (Mentally Retarded) range."
Defendant also argued two aggravating circumstances relied on by the probation department should not be used to deny him probation. First, while Castaneda used a weapon during the commission of the offense, defendant merely aided and abetted the commission of the armed robbery. Second, defendant disputed the probation report's conclusion that the crime indicated planning, sophistication, or professionalism. Instead, defendant argued that the crime, occurring as it did during a blackout, was a "crime of opportunity," and that defendant lacked the mental capacity for such a circumstance to apply to him.
After reviewing the probation report, the statement in mitigation, and the psychological evaluation, the trial court ordered that defendant be placed in a diagnostic facility of the Department of Corrections and Rehabilitation pursuant to Penal Code section 1203.03 for a 90-day diagnostic evaluation. This evaluation, like the probation report, recommended a prison commitment, finding defendant to be "a poor candidate for probation and a risk to society." The correctional counselor who authored the evaluation noted that defendant did not have "personal resources or a promise of employment" that would assist him in succeeding on probation. While defendant stated that he planned to "'do something'" if granted probation, he was "unsure of any current or future plans" and admitted to smoking marijuana on a weekly basis. The correctional counselor also noted that defendant's juvenile record includes a conviction for battery and an arrest on charges of exhibiting a deadly weapon and making a criminal threat.
During the diagnostic interview, defendant expressed no remorse for his involvement in the current crime. Indeed, he "adamantly denied the charges," claiming he was "convicted of a crime that he was not involved in because he is a black, skinny guy with dreads that matched the description of one of the suspects." According to defendant, he was simply "in the wrong place at the wrong time." The correctional counselor found defendant's lack of remorse to be of "great concern," stating: "He has been convicted of participating along with others in a particularly brazen street crime. This serious act is a blatant disregard for human life. The behavior was dangerous, thoughtless, and represents street thug mentality that no citizen should have to tolerate. He adamantly denied being involved and claimed he was in the wrong place at the wrong time. [Defendant] was neither remorseful for his situation nor convincing that he was not involved. He has no plans or goals for the near future and stated he has no reason to change his way of life."
Finally, the correctional counselor cited a psychological evaluation conducted by Dr. P. McFarland, which confirmed that defendant expressed no remorse for his participation in the crime. Dr. McFarland found defendant to be "generally antisocial," "defiant of direction from authority figures," and "defensive when discussing himself with others." The evaluation also pointed out that defendant's residence is "typically unstable," he has "minimal or no marketable job skills," "no specific future goals," and would "probably not resume work upon release from incarceration." The evaluation concluded: "The overall pattern of psychosocial findings is one of excessive risk to the community should probation be granted. Therefore, from a psychological viewpoint, a decision to deny probation is in the best interests of the community at this time."
At the subsequent sentencing hearing, the trial court denied probation, stating: "I'm not unsympathetic to you, and in all honesty, if we had a probation department, I would probably impose a sentence more in line of [sic] what [defense counsel] is suggesting, but the truth of the matter is we no longer really have one, so I am going to follow the recommendation. [¶] I don't think that you're as much of a danger as the crime portends, or your complicity in it, your participation, was not a good part of it. I have a feeling if I were to sit next to your father or if he and I were to meet out there, he'd say, 'You know, I have a good kid.' [¶] But I do think what I'm about to say is really what happens more often in your life than anything else, is that you associate with the wrong kind of people. And I'm getting a nod from your dad back there, which I expect[ed] would occur. [¶] The point I'm getting at is, you're going to go to prison. It won't be for that much longer because, your attorney is right, you basically have done [two] years, so you have a short period of time that you have to do left, which would be just a matter of months to do." The trial court then sentenced defendant to a three-year prison term and imposed other orders. Defendant appeals.
Defendant contends that "the court's reliance on the absence of a probation department as the basis for its denial of probation was an abuse of discretion." However, as he acknowledges, trial counsel did not object below, resulting in the claim of error being forfeited.
"In order to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim." (People v. Scott (1994) 9 Cal.4th 331, 351, citing People v. Walker (1991) 54 Cal.3d 1013, 1023 ["'The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had'"]; People v. Saunders (1993) 5 Cal.4th 580, 589-590; see also In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 [stating that the correct legal term for loss of right based on failure to assert it in a timely fashion is forfeiture, not waiver].)
This forfeiture doctrine applies to claims of sentencing error asserted by both the People and the defendant. (People v. Tillman (2000) 22 Cal.4th 300, 303.) Accordingly, "all 'claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices' raised for the first time on appeal are not subject to review." (People v. Smith (2001) 24 Cal.4th 849, 852, quoting Scott, supra, 9 Cal.4th at p. 352.) However, there is a "narrow exception" to this forfeiture rule for sentences that are unauthorized or entered in excess of jurisdiction: "Because these sentences 'could not lawfully be imposed under any circumstances in the particular case' [citation], they are reviewable 'regardless of whether an objection or argument was raised in the trial and/or reviewing court.' [Citation.]" (Smith, supra, 24 Cal.4th at p. 852.)
Here, defendant's three-year prison term is not an unauthorized sentence. Thus, his trial counsel's failure to object to the trial court's stated reason for denying probation and imposing this sentence forfeits the issue on appeal. This brings us to defendant's claim of ineffective assistance of counsel.
Ineffective Assistance of Counsel
Defendant contends that because "the decimation of the probation department was no reason for denying [him] probation," his trial counsel rendered ineffective assistance at sentencing by failing to object when the trial court used this as a reason for imposing a prison term. While we agree that a trial court may not deny probation solely because budget cuts have reduced the supervisory capacity of the probation department (see John O. v. Superior Court (1985) 169 Cal.App.3d 823, 828 [error for trial court to deny probation to juvenile offender "because the county fisc lack[ed] adequate funds to provide such supervision"]), we do not find a reasonable probability that an objection by defendant's trial counsel on this basis would have altered the outcome.
A criminal defendant has the right to the assistance of counsel under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right "entitles the defendant not to some bare assistance but rather to effective assistance. [Citations.] Specifically, it entitles him to 'the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.' [Citations.]" (Ibid.)
The burden of proving a claim of ineffective assistance of counsel is squarely upon the defendant. (People v. Camden (1976) 16 Cal.3d 808, 816.) "'In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was "deficient" because his "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." [Citations.] Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citation.] Prejudice is shown when 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."'" (In re Harris (1993) 5 Cal.4th 813, 832-833; see also People v. Ledesma, supra,43 Cal.3d at pp. 216-217; accord, Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].)
Here, it is unclear what the trial court meant by its statement concerning the existence of the probation department. And, as already mentioned, trial counsel neither objected nor asked for clarification. Assuming trial counsel's failure to do so amounted to deficient performance, we find no reasonable probability that the trial court would have granted defendant probation based solely on the factors contained in rule 4.414 of the California Rules of Court.*fn1 Defendant's crime was serious, involving the use of a firearm to rob the victim at a time he was particularly vulnerable, i.e., alone, surrounded by a group of young men, under the cover of darkness provided by the power outage, with a gun in his face. As the probation report notes, the victim suffered a chipped tooth from being hit in the mouth with the gun and also suffered emotional trauma, including nightmares and exhaustion. While defendant was not the gunman, he was nevertheless an active participant in this crime. And while it may be the case that the crime was committed because the power outage presented an opportune moment to rob someone, this is not the sort of unusual circumstance, such as great provocation, that will significantly mitigate culpability. Thus, many of the factors relating to the crime militated against a grant of probation.
Nor do the factors relating to defendant lead us to believe that the trial court would have granted probation had it not considered the fiscal condition of the probation department. Defendant has a prior juvenile adjudication involving battery, and his current crimes of armed robbery and assault with a firearm indicate that his criminal behavior is increasing in seriousness as time progresses. The probation report and the evaluations conducted by the correctional counselor and Dr. McFarland reveal that defendant will likely be unwilling to comply with the terms of probation (defendant is "generally antisocial" and "defiant of direction from authority figures") and unable to do so (defendant's residence is "typically unstable," he has "minimal or no marketable job skills" and "no specific future goals," and his "social judgment and abstract judgment were immature," indicating a risk that he will again choose to join his friends in criminal conduct rather than exercise his own independent judgment). Nor was defendant remorseful concerning his role in this serious crime. The likely effect of imprisonment on defendant would be minimal since he has no dependents and, as the trial court observed, he had already served the vast majority of his sentence at the time of sentencing. Finally, and most importantly, the probation report and the evaluations conducted by the correctional counselor and Dr. McFarland indicate that defendant would be a danger to others if placed on probation.
We presume, as we must, that the trial court properly considered all of these factors in making its decision to deny defendant probation and conclude there to be no reasonable probability that the court would have granted probation had defendant's trial counsel objected to the court's statement of reasons.*fn2
The judgment is affirmed.
We concur: RAYE , P. J. HULL , J.