P. v. Jansson

Filed 8/31/07 P. v. Jansson 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Butte)

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Defendant David Ellis Jansson blames his three different trial lawyers for his commitment to state prison. In defendants view, if these lawyers had challenged the validity of the diagnoses contained in a diagnostic evaluation, the trial court would not have imposed the stay-away order he repeatedly violated by visiting the victim he abused. We reject this far-fetched notion that the lawyers acquiescence to a diagnostic report constitutes ineffective assistance of counsel and caused defendant to end up in state prison, and accept the Attorney Generals premise that defendant suffered no prejudice even if the evaluation was flawed. We also reject defendants challenge to the imposition of various costs associated with his probation. We agree with defendant, however, that he is entitled to an additional day of conduct credit.

FACTS

During an argument on September 17, 2003, defendant called his girlfriend a whore and slut, pushed her down, and dislocated her shoulder. In January 2004 defendant pled guilty to one count of corporal injury to a cohabitant (Pen. Code,  273.5, subd. (a)) with a special allegation of great bodily injury (Pen. Code, 12022.7, subd. (a)). After his request to withdraw the plea was denied, the trial court sentenced him to three years formal probation on various terms and conditions, including an order to stay away from and have no contact with the victim.

In May 2004 the victim reported to the police that defendant had battered her twice within the preceding week and that they were living together despite the court order forbidding defendant from contacting her. Defendant admitted he battered the victim on both occasions. The probation department filed a petition alleging that defendant had violated his probation by committing a new violation of Penal Code section 273.5, subdivision (a). The court ordered defendant to be evaluated pursuant to Penal Code section 1203.03. Despite the psychologists diagnosis of alcohol dependence, intermittent explosive disorder, and antisocial personality disorder, and over the prosecutors objections, the court reinstated defendant on probation.

In March 2006 probation officers observed defendant enter the victims apartment. He admitted staying at the victims residence once in a while, a fact evidenced by the victims pregnancy. This time the trial court denied probation and sentenced defendant to the midterm of three years in state prison. The court awarded defendant 66 days conduct and custody credit.

DISCUSSION

For purposes of our analysis of the inadequacy of counsel claim, we will assume the diagnostic evaluation was flawed, and for this reason we need not investigate the factual bases for the psychologists conclusions. We will also assume the lawyers had no tactical reason to forego a challenge to the report, thereby dispensing with the need for us to fund appellate counsels investigation of the viability of a habeas corpus petition.^[1] Instead, we focus exclusively on the dispositive issue of whether there is a reasonable probability the result would have been different had the lawyers prevailed on a challenge to the accuracy of the diagnoses. (Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674] (Strickland).)

The Attorney General points out the salient fact that the trial court first imposed the stay-away order as a condition of probation before the diagnostic report was ordered, an eminently reasonable condition in a domestic violence case. Defendants assertion that the trial court would have later eliminated the condition even though defendant violated the terms of probation by again battering the victim strains credulity. Despite the prosecutors argument that a person with antisocial personality disorder was not amenable to treatment and should be incarcerated, the trial court accepted the recommendation of the psychologist and the probation department and reinstated defendants probation. Thus there is no merit to defendants insistence that the report poisoned the courts attitude toward him.

Defendant continued to disregard the terms of his probation by contacting the victim, possessing stolen property, moving his address without informing his probation officer, and entering the victims residence. It was only then that the trial court rejected defendants request to remain on probation. The court explained: The defendant inflicted bodily injury, defendants record of criminal conduct indicates a pattern of increasingly serious criminal conduct, and defendants prior performance on probation or parole was unsuccessful. The defendant has been tried on probation in this matter and has failed. Defendant has had two prior violations of probation. The Court would note that any one of the reasons stated for denying probation would standing alone be a sufficient reason to justify and warrant a denial of probation in this case.

Defendant trifles with the reasons articulated by the court, expressing his disagreement that his criminal conduct was becoming increasingly more serious and insisting that he had made substantial progress since his last probation violation. But he ignores the critical fact that the court did not base its denial of probation on the diagnostic report. Conspicuously missing from the list of reasons was any mention of his antisocial personality disorder or alcohol dependence. As a result, we conclude it is not reasonably probable that in the absence of the misdiagnoses, the court would have granted defendant probation. (Strickland, supra, 466 U.S. at pp. 694, 697.) In short, the diagnostic report had no bearing on the courts decision and defendant suffered no harm from any errors contained therein.

II

Defendant next asserts the trial court failed to properly determine his ability to pay the costs of his probation supervision and the preparation of his presentence investigation report. (Pen. Code, 1203.1b, subd. (a).) He contends the trial court did not make the necessary inquiry as to defendants ability to pay and failed to refer the matter to the probation department for an evaluation. He dismisses the probation departments recommendation as well as his own express waiver of the right to an evidentiary hearing. We conclude the record supports the imposition of the fees.

Defendant speculates that the probation department did not consider his ability to pay but merely recommended its standard fees. He ignores the relevant portion of the probation report, which states: As a result of the instant offense, the defendant will have numerous fines and fees to pay. The defendant appears able-bodied with marketable job skills. Therefore, he should have the ability to pay fines and fees as ordered by the Court, should he choose to do so. He belatedly disputes he has the ability to pay, pointing out that he is unemployed, incarcerated, and in debt. But he failed to raise any of these concerns in the trial court.

Quite to the contrary, he expressly waived his right to a hearing on his ability to pay. On the Financial Obligations page, which lists the probation monthly fee as well as the cost of a presentence investigative report, appears the following notice in bold type: NOTICE: Upon satisfactory completion of Probation, you may apply to the Court to have your conviction set aside pursuant to section 1203.4 of the Penal Code, except as otherwise provided by Law. You are entitled to a hearing and right to counsel on your ability to pay and the payment amount for probation supervision and public defender fees. I waive my right to such a hearing. Defendant signed the form.

On appeal, defendant contends it is not clear he had the option not to sign the document; nor is it clear whether he signed before or after the hearing. Although the probation department had determined that he had the ability to pay, he faults the trial court for not making a formal referral to probation on the day of the hearing. We reject his attempt to escape responsibility for his own clear and express waiver and his insistence on a referral for a determination the probation department had already made.

III

We do agree with defendant, however, that he is entitled to an extra day of custody credit. We do not understand the Attorney Generals argument to the contrary. Having conceded that a defendant is entitled to credit for all days spent in custody from the date of arrest to the date of sentencing pursuant to Penal Code section 2900.5 and correctly stating that defendant was arrested on March 10, 2006, and sentenced on April 17, 2006, the Attorney General continues to assert that defendant is entitled to only 38 days of custody credit. Like defendant, we count 39 days. Thus, defendant is entitled to an additional day of custody credit.

DISPOSITION

The trial court is directed to prepare an amended abstract of judgment reflecting the correct number of custody credits and to forward a certified copy of said amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

RAYE , J.

We concur:

NICHOLSON , Acting P.J.

BUTZ , J.

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^[1] We thus have denied defendants request for additional fees to hire an expert to review the diagnostic evaluation.