P. v. Jones

 

 

 

 

 

 

 

 

Filed 7/29/13  P. v. Jones CA1/1

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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opinion has not been certified for publication or ordered published for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

 

FIRST APPELLATE DISTRICT

 

DIVISION ONE

 

 
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THE PEOPLE,             Plaintiff and Respondent, v. JEFFREY JONES,             Defendant and Appellant.

A136724         (San Francisco City & County       Super. Ct. No. 206448)

 

            After revoking probation, the trial
court sentenced defendant Jeffrey Jones to an aggravated, five-year prison term
for second degree robbery (Pen. Code,
§ 211).href="#_ftn1" name="_ftnref1"
title="">[1]  Defendant asserts the trial court erroneously
considered the nature of his probation violation when selecting an aggravated
term and erroneously sentenced him without a sufficiently current probation
report.  We affirm.

Factual
and Procedural Background

            On August 10, 2008, defendant and four other males attacked and
robbed two individuals in the SOMA area of San Francisco.  The
attackers punched the victims in the face and stole their cell phones, some
cash, a wallet, and car keys.  On August
25, defendant, along with two codefendants, pleaded guilty to second degree
robbery (§ 211) pursuant to a negotiated
disposition.  On September 16, the
trial court suspended imposition of sentence and placed defendant on five
years’ probation.  This disposition was
in accord with the parties’ plea agreement and the September 16 probation
report, which concluded defendant’s youth, lack of substance abuse, and job and
education prospects, allowed for probation despite the fact the offense
involved “an unprovoked and overt act of violence resulting in physical
injuries.”

            Two years later, in October 2011,
while still on probation, defendant accosted an individual near the
intersection of Powell and Market Streets in San Francisco. 
Defendant slapped the victim’s hand, knocking his cell phone to the
ground, where it broke into pieces. 
Defendant nevertheless walked off with the phone.  The victim followed, was able to flag down a
police officer and thus ensured defendant’s arrest.

            The district attorney moved to
revoke defendant’s probation.  The
probation department prepared a supplemental report on November 18,
recommending revocation.

            At the revocation hearing, in
January 2012, the trial court received testimony about the 2011 incident and
other alleged probation violations.  The
court revoked probation, finding defendant was responsible for the October 2011
incident, had been out of state without permission, had been disruptive in
custody, and had been arrested “out of state” and later “out of county.” 

            In late April, defendant’s counsel
declared a doubt as to his client’s competency to stand trial, proceedings were
suspended, and sentencing on the underlying robbery conviction, delayed.  Proceedings resumed on May 30, after the
court reviewed a 10-page psychological report evaluating defendant’s mental
condition and finding him competent. 

            At hearings in June and July,
sentencing was again continued.  At each
of these hearings, the court requested a “supplemental report on credits,”
requests defendant did not comment upon. 
In fact, from shortly after his probation was revoked until he was
sentenced on the underlying conviction, the probation department prepared seven
supplemental reports on credits:  on February
10, 2012, March 2,
2012, March
16, 2012, April
27, 2012, July 6,
2012, August
10, 2012, and September
7, 2012.  Defendant, himself, requested nothing from
probation.

            Sentencing eventually took place on
September 14.  The trial court found the
August 2008 offense involved multiple victims who were violently “ganged up”
on.  It also found “troubling” the 2011
incident and what it viewed as an “escalation in violence.”   Defendant asserted his marginalized mental
state was a mitigating factor.  The court
did not agree, and “given the facts of this case and the underlying count of
conviction,” the court “impose[d] the high end of five years in State
prison.” 

Discussion

Choice of Upper Term>        

            Defendant first asserts his upper
term sentence was impermissibly based on the nature of the 2011 crime giving
rise to the revocation of his probation, and not on his 2008 crime.  (See Cal. Rules Court, rule 4.435(b)(1)href="#_ftn2" name="_ftnref2" title="">[2] [“The length of
the sentence must be based on circumstances existing at the time probation was
granted, and subsequent events may not be considered in selecting the base term
or in deciding whether to strike the additional punishment for enhancements
charged and found.”]; see also People v.
Goldberg (1983) 148 Cal.App.3d 1160, 1163 [This rule “was intended to
preclude the possibility that a defendant’s bad acts while on probation would
influence his sentence upon revocation of probation.”].)

            Defendant has forfeited this issue,
however, by failing to raise it in the trial court.  (People
v. Scott (1994) 9 Cal.4th 331, 356 [“[C]omplaints about the manner in which
the trial court exercises its sentencing discretion and articulates its
supporting reasons cannot be raised for the first time on appeal.”]; >People v. Steele (2000) 83 Cal.App.4th
212, 226 [waiver of objection to use of particular aggravating factor if not
raised in trial court].)

            Even had defendant not forfeited the
issue, we would reject his argument on the merits.  In urging that the upper term be imposed, the
prosecutor emphasized two points—that there were multiple victims in the August
2008 crime and they were violently assaulted. 
One of the victims estimated he was struck approximately 10 times during
the robbery.  Defense counsel argued the
court should consider “not only . . . the old case but what happened in the new
case, . . . that there was not extreme violence in the new case.  There were no blows struck.  It was essentially a snatch and grab and then
running away . . . .”  Defense counsel
also urged defendant’s mental difficulties were a mitigating circumstance.  Counsel urged credit for time served and
reinstatement on probation. 

            The trial court then asked href="http://www.mcmillanlaw.com/">defense counsel directly why it should
not impose the high term asked for by the prosecutor, noting the prosecutor had
rarely asked for the high term in any case and treated “every case
individually.”  In response, defense
counsel focused on defendant’s “marginalized mental state.”  The prosecutor responded defendant’s
probation performance—suffering five arrests, making criminal threats,
disruptive behavior in jail—supported incarceration.  He further observed, state prison might
afford defendant greater resources to treat mental health issues.

            The court imposed the high
term.  It acknowledged “[t]his has been a
very difficult case,” but it was “very concerned with the violence.  [¶] The underlying offense involved
multiple victims.  It was essentially a
ganged up and people being beaten.  We
shouldn’t tolerate that in this civilized community.”  The court also noted the disquietingly
similar probation violation, and saw it “as an escalation in violence.”  The court “appreciate[d], [defense counsel],
what you are saying, but given the facts of this case and the underlying count
of conviction which involved multiple victims and violent assaults, this Court
is going to impose the high end of five years in State prison.” 

            In context, the record reflects that
trial court was addressing two things—defense counsel’s suggestion that
defendant’s mental health issues be viewed as a mitigation factor warranting
reinstatement of probation and, if probation was not reinstated, the
appropriate prison term, which the prosecution urged should be the high term of
five years.  Accordingly, the record does
not demonstrate the trial court imposed the high term for defendant’s robbery
conviction because of the nature of defendant’s probation violation.  (See People
v. Guerra (2006) 37 Cal.4th 1067, 1101 [“trial court is presumed to follow
established law absent evidence to the contrary”], disapproved on other grounds
in People v. Rundle (2008)
43 Cal.4th 76, 151.) 

            Furthermore, even if the trial court
gave any thought to the probation violation in selecting the prison term for
the underlying conviction (and the record does not, in context, show that that
occurred), we conclude “there is no reasonable probability that a more
favorable sentence would have been imposed” had the trial court not done
so.  (People
v. Osband (1996) 13 Cal.4th 622, 729–730.) 
Because of the aggravating factors the trial court properly found
(multiple victims and violence), and the court’s rejection of the potentially
mitigating factor urged by defense counsel (defendant’s marginalized mental
state), we conclude a more favorable sentence would not be reasonably probable
on remand.  (See People v. Steele, supra, 83
Cal.App.4th at p. 226 [“the finding of even one [permissible] factor in
aggravation is sufficient to justify the upper term . . . [e]ven if some of the
factors were impermissible”]; >People v. Williams
(2009) 170 Cal.App.4th 587, 642
[“Because a single factor in aggravation can support an upper term sentence . .
. the trial court’s reliance on additional factors not found by the jury does
not require remand for resentencing.”]; People
v. King (2010) 183 Cal.App.4th 1281, 1322 [“Trial courts need not state
reasons for rejecting or minimizing a mitigating factor . . . [and] ‘unless the
record affirmatively indicates otherwise, the trial court is deemed to have
considered all relevant criteria, including any mitigating factors.’ ”], fn.
omitted; rule 4.409 [“Relevant criteria enumerated in these rules must be
considered by the sentencing judge, and shall be deemed to have been considered
unless the record affirmatively reflects otherwise.”].)

Sufficient Probation Report

            Defendant secondly asserts the trial
court failed to obtain an adequate, recent probation report before imposing
sentence.  According to defendant, the
November 18, 2011 probation report, used at the January 2012 revocation
hearing, had become stale by the September 2012 sentencing. 

            “The court must order a supplemental
probation officer’s report in preparation for sentencing proceedings that occur
a significant period of time after the original report was prepared.”  (Rule 4.411(c).)  According to the advisory committee comment,
“[s]ubdivision (c) is based on case law that generally requires a supplemental
report if the defendant is to be resentenced a significant time after the
original sentencing, as, for example, after a remand by an appellate court, or
after the apprehension of a defendant who failed to appear at sentencing.  The rule is not intended to expand on the requirements
of those cases.”  (Advisory Com. com., 23
pt. 1B West’s Ann. Codes, Rules (2006 ed.) foll. rule 4.411,
pp. 235–236.)  Moreover, “[t]he rule
does not require a new investigation and report if a recent report is available
and can be incorporated by reference and there is no indication of changed
circumstances. . . .  If a full report
was prepared in another case in the same or another jurisdiction within the
preceding six months, during which time the defendant was in custody, and that
report is available to the Department of Corrections and Rehabilitation, it is
unlikely that a new investigation is needed.” 
(Ibid.; see People
v. Dobbins (2005) 127 Cal.App.4th 176, 180–181 (Dobbins).)

            Defendant has also forfeited this
argument.  Supplemental reports were
discussed at numerous hearings leading up to sentencing, and the probation
department prepared seven supplemental reports on custody credits between
February 2012 and September 2012, with the final report coming just a week
before sentencing.  Whether or not a
defendant can forfeit an appellate challenge to the absence of a supplemental probation report to which he is entitled
(see Dobbins, supra, 127 Cal.App.4th at p. 182; § 1203, subd. (b)(4)),
challenges to a report’s adequacy
must still be raised below or lost.  (>People v. Llamas (1998) 67 Cal.App.4th
35, 39 [“ ‘It is settled that failure to object and make an offer of proof at
the sentencing hearing concerning alleged errors or omissions in the probation
report waives the claim on appeal.’ ”].) 
In this case, defendant can only be said to challenge the adequacy of
the supplemental reports, not whether they were “prepared,” and has therefore
waived this issue.  (See § 1203,
subd. (b)(4).)

            Even if the trial court erred in
failing to obtain a more comprehensive supplemental probation report, that
error was, again, harmless.  While the
lack of a current probation report “is generally treated as reversible error” (>People v. Mariano (1983) 144 Cal.App.3d
814, 824–825; see also People v. Rojas
(1962) 57 Cal.2d 676, 682–683), no appellate court has held reversal is
required per se.  On the contrary, appellate courts still apply
a Watsonhref="#_ftn3" name="_ftnref3" title="">>[3] harmless error
analysis, as there is “no federal constitutional right to a supplemental
probation report.”  (Dobbins, supra,
127 Cal.App.4th at p. 182 [error was harmless]; People v. Centeno (2013) 214 Cal.App.4th 843, 860 (>Centeno) [same].)  Under this standard, the judgment will be
affirmed absent a reasonable probability of a more favorable result to
defendant on remand.  (>Dobbins, supra, 127 Cal.App.4th at p. 182; Centeno, supra, 214
Cal.App.4th at p. 860.)

            As in Dobbins and Centeno,
there is no reasonable probability a more extensive probation report would
change the outcome here.  Defendant
suggests no new favorable information that might have been included in the
supplemental probation reports.  (See >Centeno, supra, 214 Cal.App.4th at p. 860 [“Defendant does not assert there
was any new information that should have or would have been included in a
supplemental report that would have resulted in a more favorable sentence for
defendant.”].)  His mental health issues,
for instance, were squarely before the court, both through counsel’s argument
at sentencing and the detailed mental health report prepared in connection with
the declared doubt of defendant’s competency. 
(See ibid. [“defendant’s trial
counsel informed the trial court of defendant’s experiences in jail, thus
filling any time gap, to the extent new information needed to be offered”]; >Dobbins, supra, 127 Cal.App.4th at p. 183 [a separate Proposition 36
status report gave the trial court the information it needed about defendant’s
behavior on probation].)  Nor has
defendant taken issue with the contents of the 2008, 2011, and subsequent
reports.  (See Dobbins, at p. 183 [“The original probation report apprised the
trial court of defendant’s background and other relevant information.”].)  In addition, the trial court unequivocally
expressed an intention to not reinstate probation and to impose a prison
term.  (See ibid. [“his record was such (including as it did numerous parole
violations and periods of incarceration) that there was little justification
for a further grant of probation”].)

Disposition

            The judgment is affirmed.

 

 

                                                                                    _________________________

                                                                                    Banke,
J.

 

 

We concur:

 

 

_________________________

Margulies, Acting P. J.

 

 

_________________________

Sepulveda, J.href="#_ftn4"
name="_ftnref4" title="">*