P. v. Blankenship

Filed 8/21/07 P. v. Blankenship CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

----

Defendant William Mikel Blankenship pleaded guilty to failing to register as a sex offender within five working days of his birthday (count 1) (Pen. Code, 290, subd. (a)(1)(D))^[1]and failing to reregister within five working days of moving (count 2) ( 290, subd. (a)(1)(A)) and admitted serving a prior prison term ( 667.5, subd. (b)) in exchange for a sentencing lid of four years eight months.

Sentenced to four years eight months in state prison, defendant appeals, contending his trial counsel rendered ineffective assistance at sentencing. We disagree and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I

Underlying Offenses^[2]

In 1996, defendant was convicted of committing a lewd act upon a 14- or 15-year-old child ( 288, subd. (c)), and as a result of that conviction, was required to register as a sex offender under section 290.

On November 5, 2005, defendant was contacted by an officer with the Redding Police Department. Defendant told the officer he had been spun out recently on methamphetamine and that he forgot to register following his birthday on September 10, 2005.

On November 27, 2005, a deputy from the Shasta County Sheriffs Department went to defendants last known address and was told defendant had moved. Defendant did not

re-register after he moved.

II

Sentencing

Following defendants guilty plea, the trial court referred the matter to probation for their recommendation and report. The probation report recommended defendant be sentenced to four years eight months in prison. While the report acknowledged defendants felonies are rather old; one being in 1996 and one being in 1983, it observed defendant has been incarcerated almost consistently since 1980, with very few lengthy breaks in incarceration. It found no facts in mitigation and the following four facts in aggravation: (1) defendants prior convictions as an adult . . . are numerous; (2) defendant has served a prior prison term; (3) defendant was on probation or parole when the crime was committed; and (4) defendants prior performance on probation or parole was unsatisfactory. (Underscoring in original.)

The report also summarized defendants prior record. In 1978, at the age of 18, defendant was convicted of vehicle theft and sentenced to county jail for 60 days. In 1979, he was convicted of driving under the influence and sentenced to county jail for 60 days. In 1980, he was convicted of escape while in custody, a felony, and placed on three years formal probation. In 1981, he violated his probation and was sentenced to one year and one day. In 1983, he was convicted of felony assault and sentenced to 1 year [c]onfinement, 10 years [s]uspended, 5 years [p]robation. In 1986, he was convicted of assault and inflicting injury upon a child. Both convictions were reduced to misdemeanors, and he was sentenced to 41 days in jail. In 1988, 1990 and 1992, he violated the conditions of his parole. In 1996, he was convicted of committing a lewd and lascivious act upon a child of 14 or 15, a felony, and sentenced to three years in prison. In 1997, he was convicted of a drug offense and sentenced to 90 days in [j]ail or [f]ine. In May 1997, August 1997, April 1998, May 1999, and September 1999, he violated the terms of his parole. In January 2002, July 2003, and April 2004, he was convicted of drug offenses and placed on probation.

The trial court indicated it intended to [f]ollow the recommendation of four years and eight months, and defendant requested a 1204 hearing to present evidence in mitigation.

At the 1204 hearing, defendant testified he was living in a mobile home park when word spread that he was a registered sex offender. He was harassed there in February or March 2005. All the windows of his mobile home were broken, someone attempted to set his mobile home on fire, he was beaten, and he was eventually asked to leave the mobile home park. His girlfriend left him due to the harassment. After that, in June or July 2005, he gave up and began using methamphetamine. He was using methamphetamine when he committed the underlying offenses.

The People argued defendant should be sentenced to state prison for as long as possible under the negotiated disposition given his extensive criminal record and the nature of the underlying offenses.

Defense counsel responded that, while not a defense to the underlying crimes, the harassment defendant suffered and his subsequent use of methamphetamine were mitigating circumstances. He argued that the underlying offenses were technical violation[s] and victimless crime[s], not serious or violent felon[ies] and noted that defendant ha[d] no recent history of committing crimes of violence. He requested that the court place defendant on probation so that defendant could participate in a drug treatment program, and [i]f not, impose the lower 2-year, 8-month term versus the 4-year, 8-months.

The trial court denied defendants request for probation and sentenced him to four years eight months in prison, consisting of three years (the upper term) on count 1, a consecutive eight months (one-third the middle term) on count 2, plus one year for the prison prior. In doing so, the court stated: [Y]our prior record simply justifies an aggravated term. And there really isnt anything to counterbalance that of significant weight, so I will impose the three years for count 1 . . . .

DISCUSSION

The burden of proving a claim of ineffective assistance of counsel is on the defendant. (People v. Ledesma (1987) 43 Cal.3d 171, 218.) To meet this burden, the defendant must prove two things. First, he must show that his counsels representation was deficient, i.e., it fell below an objective standard of reasonableness . . . under prevailing professional norms. (Id. at p. 216, quoting Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693-694].) Second, he must show that counsels deficient representation subjected the defense to prejudice, i.e., that there is a reasonable probability that but for counsels failings, the result would have been more favorable. (Id. at pp. 217-218.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Id. at p. 218, quoting Strickland v. Washington, supra, 466 U.S. at pp. 693-694.)

I

Defendant argues his trial counsel was ineffective because he did not object to the trial courts failure to give a separate reason for imposing a consecutive sentence and its use of the same reason to both aggravate and sentence consecutively.

The trial court is required to state reasons for its sentencing choices, including a decision to impose consecutive sentences. (Cal. Rules of Court, rule 4.406(b)(5); People v. Walker (1978) 83 Cal.App.3d 619, 622.) In deciding whether to impose consecutive rather than concurrent sentences, the trial court may consider whether the crimes were predominantly independent of each other, involved separate acts of violence or threats of violence, or were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. (Cal. Rules of Court, rule 4.425(a).) It may also consider [a]ny circumstances in aggravation or mitigation . . . except [] . . . a fact used to impose the upper term. (Cal. Rules of Court, rule 4.425(b)(i).)

Here, the trial court cited defendants prior record as the basis for imposing a consecutive term on count 2, and thus, complied with the requirement that it state a reason for imposing a consecutive sentence. (Cal. Rules of Court, rule 4.406(b)(5).) However, the trial court was precluded from relying on defendants prior record in deciding whether to impose a consecutive sentence on count 2 because it had already used that fact as a basis for imposing the upper term on count 1. (Cal. Rules of Court, rule 4.425(b)(i).)

Although an objection to the trial courts dual use of defendants prior record would have been meritorious, defendants ineffective assistance of counsel claim fails because it is not reasonably probable the trial court would have imposed concurrent, as opposed to consecutive, sentences had it known it could not rely on defendants prior record in making its determination. (See People v. Osband (1996) 13 Cal.4th 622, 728-729.)

Defendant violated section 290 in count 1 by failing to update his registration information within five working days after his birthday on September 10, 2005. ( 290, subd. (a)(1)(D).) This offense occurred on or about September 15, 2005. In count 2, defendant violated a different registration requirement in section 290 by failing to register his true address within five working days of moving. ( 290, subd. (a)(1)(A).) That criminal act occurred on or about November 27, 2005.

Because the underlying offenses arose from two separate incidents, were committed on different dates and involved two separate crimes, we find it improbable that the trial court would have imposed concurrent, as opposed to consecutive, sentences had it been advised it could not rely on defendants prior record in making its determination. (People v. Sanchez (1994) 23 Cal.App.4th 1680, 1688; Cal. Rules of Court, rule 4.425(a).) Accordingly, defendant cannot establish he was prejudiced by counsels omission.

II

Defendant complains his counsel was ineffective because he never asked the court to impose concurrent sentences. Defendant argues the court could have found (1) the crimes and objectives were not predominately [sic] independent since both involved a failure to register, (2) the two instances of failure to register constituted a single period of aberrant behavior, and (3) defendants testimony about mitigating circumstances justified concurrent sentences. For the reasons discussed in part I of the Discussion, ante, we disagree and find it is not reasonably probable that the court would have imposed concurrent sentences had counsel asked it to do so.

III

Defendant asserts his counsel was ineffective because he did not object to or refute the probation

reports statement that he had been incarcerated almost consistently since 1980, with very few lengthy breaks in incarceration. . . . He argues that the probation reports listing of [his] actual record shows its characterization was not correct.

Assuming for arguments sake that the statement quoted by defendant mischaracterizes his prior record, as he contends,

he cannot establish that he was prejudiced by the mischaracterization. As he acknowledges, his prior record is detailed in the probation report, and he did not (and does not) dispute its accuracy. The trial court reviewed the report and even questioned defendant about his prior record at the section 1204 hearing. Because the trial court had a detailed account of defendants prior record before it, defendant cannot show he was prejudiced by the reports alleged mischaracterization of his record.

IV

Defendant says his counsel was ineffective because he failed to adequately advocate based upon [defendants] prior record, which consisted mainly of misdemeanors and parole violations. Although defendant acknowledges that counsel advised the court that defendant ha[d] no recent history of committing crimes of violence, defendant faults counsel for failing to emphasize all the misdemeanors.

Again, defendant cannot demonstrate he was prejudiced by counsels alleged omission since defendants prior record -- including the number, substance and dates of his prior felony and misdemeanor convictions -- is detailed in the probation report.

V

Finally, defendant claims his counsel was ineffective because he failed to expressly ask the court to strike the prior prison term enhancement or press the trial court for a ruling on his implicit request.

Defense counsel asked the court to place defendant on probation, or alternatively, impose a two-year eight-month sentence, which necessarily consisted of two years (the middle term) on count 1 and eight months (one-third the middle term) on count 2. ( 290, subd. (g)(2).) By making this request, counsel implicitly requested the court strike the prison prior.

Defendant cannot demonstrate he was prejudiced by counsels failure expressly to request the court to strike the prison prior or obtain a ruling on his implicit request. A trial court has discretion to strike prior prison term enhancements in furtherance of justice under section 1385. ( 1385, subd. (a); People v. Bradley (1998) 64 Cal.App.4th 386, 390.) Given defendants extensive and ongoing criminal history and the trial courts statement at sentencing that the community had an interest in having [defendant] incarcerated, it is not reasonably probable the court would have stricken the prison prior had counsel expressly requested the court to do so or obtained a ruling on his implicit request.

Whether considered individually or as a whole, the acts and omissions cited by defendant fail to establish he received ineffective assistance at sentencing.

DISPOSITION

The judgment is affirmed.

NICHOLSON , Acting P.J.

We concur:

RAYE , J.

ROBIE , J.

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^[1] Further statutory references are to the Penal Code.

^[2] Facts concerning the underlying offenses are taken from the probation report.