P. v. Aria

Filed 3/16/07 P. v. Aria CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, John A. Torribio, Judge. Modified and, as modified, affirmed with directions.

Mark D. Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Robert F. Katz and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.

____________________________

Rudolph Louis Arias appeals from the judgment entered following his convictions by jury on count 1 first degree murder (Pen. Code,  187, 189) with a principal armed with a firearm (Pen. Code,  12022, subd. (a)(1)) and special circumstance findings that appellant committed the offense for financial gain (Pen. Code,  190.2, subd. (a)(1)) and lying in wait (Pen. Code,  190.2, subd. (a)(15)), count 2 solicitation of murder (Pen. Code,  653f, subd. (b)), and count 3 conspiracy (Pen. Code, 182, subd. (a)(1)). The court resentenced appellant to prison for a total unstayed term of life without the possibility of parole, plus two years.^[1]

In Arias I, we concluded, inter alia, that multiple punishment on counts 1 and 3 violated Penal Code section 654, and we remanded for resentencing on those counts. Appellants initial sentence had included concurrent terms of life without the possibility of parole, and life, on counts 1 and 3, respectively. Following remand, the trial court imposed sentence on count 1 and stayed the sentence on count 3 pursuant to Penal Code section 654.

We conclude appellant was not denied effective assistance of counsel by his trial counsels failure to argue at resentencing that appellants early cooperation with police was a significant mitigating factor. The record sheds no light on why appellants trial counsel failed to argue the issue expressly, counsel was not asked for an explanation, and it cannot be said there could be no satisfactory explanation. In fact, there were satisfactory explanations. At resentencing, the People mentioned appellants cooperation as a mitigating factor. Appellants counsel referred to the mitigating factor indirectly when, during resentencing, he referred to the factual recitation in Arias I, and those facts included appellants cooperation. Even if appellants cooperation was a mitigating factor, there were numerous grounds supporting the trial courts sentencing choice.

Moreover, even if appellant received constitutionally deficient representation, there was no prejudice. We have noted three satisfactory explanations for appellants counsels failure to argue expressly appellants cooperation. Further, the trial court at resentencing was the same trial court which had presided at initial sentencing, and the trial court had heard the argument of the prosecutor at initial sentencing that appellants cooperation was a mitigating factor. Appellants counsel at initial sentencing joined in the prosecutors argument, and noted the only real mitigating factor was appellants lack of a criminal record. The trial court at resentencing clearly read Arias I, which referred to appellants cooperation. Accordingly, there is no need to reverse the judgment.

We also conclude there is no need to decide appellants related claim that the trial court erred by failing to obtain a supplemental probation report. The trial court at resentencing is presumed to have read the previous probation report. Moreover, the trial court at resentencing was aware of the facts pertaining to the present crimes. The trial court assumed for purposes of resentencing that, during appellants interim imprisonment for the present crimes, appellant had been a model prisoner. The trial court heard argument of counsel. Appellant did not, at resentencing, and does not now, identify any specific way in which a supplemental report could have shed additional light. The claimed error was not prejudicial.

We accept respondents concession that imposition of a $1,000 restitution fine pursuant to Penal Code section 1202.4, subdivision (b), violated the state Constitutions double jeopardy provision. Finally, in light of our resolution of appellants other contentions, we reject appellants contention that the matter should be remanded to a different trial court judge.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that in 1992 or 1993, appellant, Arlene Dugmore (Arlene), Vince Martinez, William Hetzel, and Michael Villani conspired (count 1) to kill Gary Dugmore (Gary). Gary was Arlenes husband. On February 14, 1993, pursuant to the conspiracy, appellant drove Gary to a prearranged location. Shortly thereafter, Hetzel repeatedly shot Gary in the face, killing him (count 3). Appellant later asked Villani to kill Hetzel (count 2).^[2]

CONTENTIONS

Appellant contends (1) he was denied effective assistance of counsel because his trial counsel failed to argue at resentencing that appellants early cooperation was a significant mitigating factor, (2) the trial court erred by failing to obtain a supplemental probation report following remand for resentencing, (3) imposition of a $1,000 restitution fine violated state constitutional double jeopardy principles and the Fourteenth Amendment, and (4) the matter should be remanded to a different trial court judge for resentencing.

DISCUSSION

1. Appellant Was Not Denied Effective Assistance of Counsel at Resentencing, and the Court Did Not Reversibly Err by Failing to Order a Supplemental Probation Report.

a. Pertinent Facts.

In March 2003, after the jury reached its verdicts, the court ordered a probation report, or a supplemental report if a preconviction probation report already had been prepared.^[3]At initial sentencing on April 9, 2003, the court announced that, through no ones fault, a probation report had not been prepared. Appellant, represented by retained counsel, indicated he was fairly familiar with probation reports and waived his right to one. The court indicated a probation report would not make any difference because appellant was ineligible for probation. Appellant agreed.

The prosecutor initially submitted the matter. The prosecutor then indicated he wanted to say something for appellants benefit relating to whether he should receive a concurrent or consecutive sentence on count 3 (conspiracy). The prosecutor acknowledged that, toward the end of the trial, appellant was very cooperative, spoke with a detective and the previous prosecutor, and candidly told them everything that had happened. The prosecutor indicated appellant deserved credit for that, as horrible as the crimes were, and the prosecutor recommended a concurrent term on count 3.

Appellants counsel agreed, noting the only real mitigating factor was that appellant had no real criminal record. Appellants counsel added that early in the investigation, appellant was cooperative with detectives.

After further discussion, the court, Judge John A. Torribio presiding, sentenced appellant, and appellants sentence included concurrent terms of life without the possibility of parole, and life, on counts 1 and 3, respectively.

A probation report was prepared for an April 28, 2003 nonappearance hearing. That report contains nothing pertinent to this appeal. An April 29, 2003 minute order pertaining to the April 28, 2003 proceeding reflects the court was in receipt of the report as of April 28, 2003.

A probation report was also prepared for a May 15, 2003 post-sentence hearing. According to that report, appellant claimed the following to the probation officer. The decedent had been appellants friend. Arlene and Martinez were having an affair, and appellant unsuccessfully tried to dissuade Martinez from continuing with the affair. Appellant and Villani tried to consummate a drug deal in Central America. Villani, and

later appellant, went to Central America. While there, Villani mouth[ed] off about killing the decedent. Appellant was upset with Villani and told him never to return to appellants house. Villani complained appellant had left him in Central America, and Villani was angry because he had to pay $2,000 to return to California. Villani cooperated with police out of revenge.

Nothing in the probation report indicates appellant cooperated with police. The report indicates appellant had no adult criminal history. A May 15, 2003 minute order reflects the court received the post-sentence report at a nonappearance hearing on that date.

Appellant appealed on the ground, inter alia, that the trial court erred by imposing concurrent sentences on counts 1 and 3. In our March 29, 2005 decision in Arias I (see fn. 1), we concluded multiple punishment on those counts violated Penal Code section 654. Resolving the parties disagreement as to whether remand for resentencing was appropriate (as opposed simply to modifying the judgment to stay sentencing on count 3), we noted the punishments on counts 1 and 3 were life without the possibility of parole, and 25 years to life, respectively. We also noted the prosecutor at the initial sentencing hearing had explained to the trial court that [appellant], at one point, had been very cooperative with the police investigation. [Fn. omitted.] (Arias I, at p. 23.) In the omitted footnote, we quoted a portion of the prosecutors comments at initial sentencing on April 9, 2003, to the effect that appellants cooperation with police was a mitigating factor. We remanded the matter to permit the trial court to exercise its discretion to impose sentence on count 1 or 3, but not both.

Following remand, the trial court (the same one which initially sentenced appellant) conducted a resentencing hearing on November 29, 2005. The prosecutor and appellants counsel were not the same as the prosecutor and appellants counsel at previous proceedings. At the November 29, 2005 hearing, appellant was represented by court-appointed counsel.

At the November 29, 2005 hearing, the trial court noted that this court had remanded the matter for resentencing as previously discussed. The trial court indicated no probation report had been ordered following remand but the trial court would be resentencing appellant based on what happened as of the date of the present offenses and not based on what happened during the ensuing two or three years. Appellant requested that the trial court order a new probation report, and argued the report should contain information concerning events that occurred after the present offenses. The People asked that the trial court sentence appellant immediately.

In response to court comments, the parties conceded appellant was legally ineligible for probation and the only question was whether the court would sentence appellant to prison for life without the possibility of parole, or to life. The court questioned what a supplemental report would add. The court indicated it would assume appellant had been a model prisoner, and the court indicated it would take into consideration the original crimes as well.

Appellants counsel indicated he had looked at the probation report dated in 2003. Appellants counsel also indicated that that report reflected that appellant had no criminal record.^[4] The court indicated that its recollection was that appellant had no prior criminal history, but appellant hit a home run when he committed his first crime. Appellant repeated his request for a new probation report, and submitted the matter. The court denied the request, but indicated it assumed appellant would receive a glowing report regarding his conduct while in prison.

The court added that appellant had been a model prisoner, there was nothing else to add to the record, and appellants counsel would be aware of anything else. The court indicated the issue was the appropriate sentence in light of the crimes. The court again denied appellants request, and appellant thanked the court. Appellant made no proffer of additional sentencing information or specific favorable information that a current probation report might have contained.

The prosecutor argued the court should resentence appellant to prison for life without the possibility of parole, based on the following grounds. First, such a sentence was consistent with Arlenes sentence. Second, appellant conspired to murder, and murdered, for money. Third, appellants involvement in the present offense was extensive. Fourth, the planning occurred over a period of weeks, and there were two other potential locations for the killing until it actually occurred at a third location. Fifth, after appellant concluded Hetzel was cooperating with the People as their star witness, appellant solicited Villani to kill Hetzel.

The prosecutor commented it was only after appellant was caught red-handed giving money to Villani and soliciting the murder of Hetzel that appellant began cooperating with police by making phone calls to Arlene. The prosecutor indicated the cooperation was of limited mitigating value given the events leading to the cooperation and the fact that appellant began cooperating only after he was caught trying to kill the Peoples star witness. Finally, the prosecutor argued that a murder for hire would normally be charged simply as a murder for hire without a conspiracy charge, and it would be ironic if the additional conspiracy charge resulted in appellant not receiving a sentence for murder for hire.

Appellants counsel indicated as follows. Counsel was essentially relying on Arias I, and he had reviewed the facts discussed in that decision. There were facts indicating appellant somehow may have participated in the present offenses. However, appellant was not the shooter. Arias I concluded there was sufficient evidence supporting the financial gain allegation, and that was the law of the case. In light of a review of the facts of this case, and the fact that appellant had no prior record, the court should sentence appellant to prison for 25 years to life for the conspiracy. Counsel did not expressly refer to appellants cooperation as a mitigating factor.

The court stated, [t]he only analogy I can draw is my experience . . . in the Navy. The captain set the policy and there was the executive officer that made it happen. [] And Mr. Arias is the executive officer who made it happen. Without his complicity, [Gary] would be alive today. I think inappropriate to sentence him other than to life without the possibility of parole. The court resentenced appellant to prison on count 1 to life without the possibility of parole, and stayed a life sentence on count 3 pursuant to Penal Code section 654.

b. Analysis.

(1) Appellant Was Not Denied Effective Assistance of Counsel.

Appellant claims he was denied effective assistance of counsel because his trial counsel failed to argue at resentencing that his early cooperation was a significant mitigating factor. We disagree.

A convicted defendants claim that counsels assistance was so defective as to require reversal of a conviction . . . has two components. [Citations.] First, the defendant must show that counsels performance was deficient. [Citations.] Specifically, he must establish that counsels representation fell below an objective standard of reasonableness . . . under prevailing professional norms. [Citations.] (People v. Ledesma (1987) 43 Cal.3d 171, 216.) In addition to showing that counsels performance was deficient, a criminal defendant must also establish prejudice before he can obtain relief on an ineffective-assistance claim. (Id. at p. 217.) Moreover, on appeal, if the record sheds no light on why counsel failed to act in the manner challenged, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, an ineffective assistance contention must be rejected. (People v. Slaughter (2002) 27 Cal.4th 1187, 1219.)

In the present case, the record sheds no light on why counsel at resentencing failed to expressly argue that appellants cooperation was a mitigating factor. However, counsel was not asked for an explanation. Nor can we say there simply could have been no satisfactory explanation. In fact, as indicated below, there were several possible satisfactory explanations.

During argument at resentencing, the People mentioned appellants cooperation as a mitigating factor. However, the People also indicated the mitigation was limited in light of the circumstances in which appellant began to cooperate. Appellants trial counsel reasonably might have wanted not to argue the issue further so the People would not further minimize the mitigating significance of the cooperation. Moreover, appellants counsel indicated he based his argument on a review of the facts set forth in Arias I, and that decision, as mentioned, referred to appellants cooperation. Leaving aside the issue of appellants cooperation, the prosecutor cited numerous grounds in support of the harsher sentence, and appellant did not expressly dispute them. Appellants counsel reasonably might have concluded that, in light of the numerous grounds supporting imposition of the harsher sentence, there was no need to refer further to appellants cooperation as a mitigating factor.

In any event, even if appellant received constitutionally deficient representation, there was no prejudice. The above mentioned satisfactory explanations militate against prejudice. Moreover, the trial court at resentencing was the same trial court which had presided at initial sentencing, and the trial court had heard the argument of the prosecutor at initial sentencing that appellants cooperation was a mitigating factor. Appellants counsel at initial sentencing joined, and noted that the only real mitigating factor was appellants lack of a real criminal record. The trial court at resentencing clearly had read Arias I, which referred to appellants cooperation. The trial court is presumed to have considered mitigating factors. (People v. Zamora (1991) 230 Cal.App.3d 1627, 1637; Cal. Rules of Court, rules 4.409, 4.423(b)(3).) Appellant did not receive ineffective assistance of counsel.

(2) The Court Did Not Prejudicially Err By Failing to Obtain A Supplemental Report.

Appellant presents the related claim that the trial court erred by failing to obtain a supplemental probation report. However, there is no need to decide whether the trial court erred. The trial court at resentencing was aware of the facts pertaining to the present crimes and indicated it would take these into consideration. The trial court assumed for purposes of resentencing that appellant had been a model prisoner, and would receive a glowing report from state prison regarding his conduct there. The trial court heard argument of counsel, including appellants counsels allusion to Arias I and appellants cooperation. The trial court indicated its recollection was that appellant had no prior criminal history. We note this fact was indicated in the May 2003 report, supporting the inference that the trial court which presided at resentencing had read that report. We also note the trial court is presumed to have read the probation report. (Cf. People v. Mendonsa (1982) 137 Cal.App.3d 888, 896; People v. Sparks (1968) 262 Cal.App.2d 597, 600-601.)

Appellant did not, at resentencing, and does not now, identify any specific way in which a supplemental report could have shed additional light. The problem for appellant was, as indicated by the trial court at resentencing, he hit a home run by committing the present offenses, including first degree murder with two special circumstances. Aware of the pertinent sentencing information pertaining to appellant, the court stated at resentencing that it thought it inappropriate to impose any other sentence than life without the possibility of parole.

Although appellant now claims he was not statutorily ineligible for probation at resentencing, he conceded at resentencing that he was statutorily ineligible. That concession amounted to a judicial admission, and appellant may not repudiate that concession on appeal. (Cf. People v. Pijal (1973) 33 Cal.App.3d 682, 697; People v. Peters (1950) 96 Cal.App.2d 671, 677; see 1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, 100, pp. 802-803.)

In any event, whether or not appellant was statutorily ineligible for probation, the trial courts failure to obtain a supplemental probation report was not prejudicial, since it is not reasonably probable that, if the trial court had possessed a supplemental probation report, the trial court would have resentenced appellant any differently than it did. (Cf. People v. Begnaud (1991) 235 Cal.App.3d 1548, 1556, fn. 7; People v. Watson (1956) 46 Cal.2d 818, 836.) Finally, there is no federal constitutional right to a supplemental probation report (cf. People v. Dobbins (2005) 127 Cal.App.4th 176, 182) and the trial courts resentencing of appellant was based on its informed discretion; therefore, no due process violation occurred.

2. Imposition of the $1,000 Restitution Fine Pursuant to Penal Code Section 1202.4, Subdivision (b) Was Error.

At initial sentencing, the trial court imposed a $200 restitution fine pursuant to Penal Code section 1202.4, subdivision (b). Following our remand in Arias I, the trial court imposed a $1,000 restitution fine pursuant to that subdivision. Respondent concedes the increased fine violates the state Constitutions double jeopardy provision but claims appellant waived the issue by failing to raise it below. However, to forestall a claim of ineffective assistance of counsel (cf. People v. Turner (1990) 50 Cal.3d 668, 708), we address the double jeopardy issue, accept respondents concession of error, and conclude the increased restitution fine violated the state Constitutions double jeopardy provision. (Cf. People v. Hanson (2000) 23 Cal.4th 355, 357.)^[5] Moreover, since respondent concedes that, if we conclude error occurred, the remedy is for this court simply to modify the judgment to impose a $200 fine, we will do so.^[6]

DISPOSITION

The judgment is modified by reducing the Penal Code section 1202.4, subdivision (b), restitution fine to $200 and, as modified, the judgment is affirmed. The trial court is directed to forward to the Department of Corrections an amended abstract of judgment reflecting the above modification.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

CROSKEY, Acting P. J.

ALDRICH, J.

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^[1] This is appellants second appeal. His first resulted in our unpublished decision in People v. Arias (Mar. 29, 2005, B167376) (Arias I), discussed below.

^[2] A fuller recitation of the facts of the present offenses may be found in Arias I, supra, B167376.

^[3] At appellants request, we have taken judicial notice of the record on appeal in Arias I.

^[4] Since the probation report prepared for an April 28, 2003 hearing contained nothing pertinent to this appeal, it appears appellant was referring to the report prepared for a May 15, 2003 hearing.

^[5] In light of that conclusion, there is no need to consider appellants federal due process argument.

^[6] In light of our resolution of appellants various contentions, there is no need to remand this case for resentencing; therefore, we reject appellants claim that the matter should be remanded for resentencing before a different trial court judge.