P. v. Marshall

Filed 10/23/07 P. v. Marshall CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael K. Kellogg, Judge. Affirmed.

Kathleen M. Redmond, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Herbert S. Tetef, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Appellant challenges the trial courts finding that he violated the terms of his probation, asserting the finding was not supported by substantial evidence because there were conflicts in the testimony. Appellant also contends the trial court abused its discretion in sentencing him without a more recent supplemental probation report, and in sentencing him to prison, rather than reinstating his probation. Appellant claims his sentence violated his right to a jury trial under the United States Constitution, because in choosing to impose the upper term, the court relied on four prior convictions which had not been found true by a jury or admitted by appellant. Finally, he requests a review of the in camera hearing on his Pitchess motion.[1]

Our review of the record reveals substantial evidence to support the trial courts probation violation finding. We conclude the probation report was sufficiently recent, and no prejudice has been shown. Appellant forfeited his challenge to the trial courts discretionary sentencing choices by failing to object below, and he was not entitled to a jury trial as to his prior convictions. We have reviewed the in camera Pitchess hearing, and conclude the trial court properly exercised its discretion. Thus, we reject appellants contentions and affirm the judgment.

BACKGROUND

In 2004, appellant pled no contest to a violation of Health and Safety Code section 11352, sale or transportation for sale of a controlled substance, cocaine base. In accordance with a plea bargain, the trial court suspended imposition of sentence and placed appellant on felony probation for a period of three years upon specified conditions, including that he serve 365 days in jail, and that he not possess narcotics or restricted drugs without a prescription, not associate with known users of narcotics and obey all laws.

Appellant was arrested July 29, 2005, after officers observed him conducting what appeared to be a sale of rock cocaine. He was charged with a violation of Health and Safety Code section 11352, his probation was summarily revoked August 12, 2005, and a probation violation hearing was held January 20 and 23, 2006. At the probation hearing, Los Angeles Police Officer James Lenoue testified that on the day in question, he was with his partner, Officer Jarvis, monitoring a hamburger stand at 646 South Main Street. He observed appellant standing in front of the hamburger stand, and watched him continuously for 10 to 15 minutes. Officer Lenoue observed a man, later identified as Mr. Copeland, approach appellant and engage him in conversation, before placing an unknown amount of United States currency on the counter of the hamburger stand. Appellant then displayed an off-white substance resembling rock cocaine in his right hand, and placed the object in Copelands left hand.[2] Appellant took the currency from the counter and placed it in his right rear pants pocket. Lenoue testified that after Copeland walked away, appellant walked northbound to the Cecil Hotel at 640 South Main Street, where he was taken into custody. Lenoue had an unobstructed view of appellant during the entire transaction.

When Copeland walked away from the hamburger stand, he was followed by Officer Jarvis, while Lenoue continued to watch appellant. Lenoue and Jarvis contacted their chase team to take Copeland into custody, and as they were about to do so, Officers De La Cruz and Taylor observed Copeland drop one rock of cocaine onto the sidewalk. The officers recovered the substance and placed Copeland under arrest. Lenoue testified that when the substance was recovered, it was wrapped in plastic that resembled cellophane.

Officer De La Cruz testified that as he approached Copeland, he observed him throw the rock cocaine from his left hand onto the sidewalk. He recovered it, placed it in a clear plastic baggie and turned it over to Officer Lenoue. Asked on cross-examination whether the rock cocaine was wrapped in plastic when Copeland dropped it, De La Cruz replied he believed it was just the substance, but could not recall, and was not sure.

Officer Manuel Melgoza testified he had been with the chase unit when appellant was arrested. Melgoza recovered appellants wallet, and found $118.25 inside.

In his defense, appellant called Officer Lenoue, who testified he did not believe the rock cocaine was in a bindle or other container when it was recovered. Appellant, who represented himself in propria persona, did not testify, but represented to the court that he had placed money on the counter after receiving it from the restaurant window for my order . . . . Appellant claimed he offered the money to Copeland to buy some videos Copeland had in his backpack, but Copeland declined the offer.

The trial court found appellant had violated his probation. At sentencing, the court noted there was no probation report, other than the early disposition report. The court informed appellant he was entitled to a probation report prior to sentencing, and asked if he wished to have one prepared. Appellant replied, No, and the court considered appellants criminal history as summarized in the early disposition report. The court imposed the high term of five years in prison, based upon appellants four prior convictions for possession of controlled substances for sale, and a 2002 prison term, as shown in the early disposition report.

DISCUSSION

1. Substantial Evidence

Appellant contends the evidence was insufficient to support the trial courts finding that he violated a condition of probation by committing a new offense. The standard of proof in a probation violation hearing is a preponderance of evidence. (See People v. Rodriguez (1990) 51 Cal.3d 437, 446-447.) On appeal, we review the record for substantial evidence to support the trial courts finding that appellant violated a condition of probation. (See People v. Arreola (1994) 7 Cal.4th 1144, 1161; People v. Kurey (2001) 88 Cal.App.4th 840, 848-849.)

Appellant argues the evidence was insufficient because, although Officer Lenoue testified his view of the transaction was unobstructed, he failed to testify as to the distance, angle or other facts to establish the truth of his claim that he could see a rock of cocaine in Copelands hand. Further, appellant argues, the officers credibility was suspect, due to conflicts in their testimony regarding whether the cocaine was packaged. Lenoue testified that when the substance was recovered, it was wrapped in plastic. De La Cruz testified he believed Copeland dropped an unwrapped piece of rock cocaine, but he was not sure. Later, when called by the defense, Lenoue testified he did not believe the rock cocaine was in a bindle or other container when it was recovered.[3]

Appellant made the same argument to the trial court. Resolving the credibility issue against appellant, the court responded, You put one and two together, and it comes out that the credibility of the officers, even though you did show that they are fallible, that they make mistakes while testifying. There is nothing intentional, you yourself are the one who corrected the testimony of the officer by his daily field activity which if he had reviewed prior to testifying probably more likely than not . . . would have been helpful . . . . So the mistakes were inadvertence.

In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] (People v. Young (2005) 34 Cal.4th 1149, 1181.) Moreover, absent physical impossibility or inherent improbability, we must accept the trial courts evaluation of any weaknesses and inconsistencies in eyewitness testimony, including the resolution of internal conflicts. (People v. Allen (1985) 165 Cal.App.3d 616, 623.) To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] [Citations.] (Ibid.)

The evidence required to support a reasonable belief that a probationer has committed a new offense is less than that necessary to convict him of that offense. (See In re Coughlin (1976) 16 Cal.3d 52, 56; People v. Andre (1974) 37 Cal.App.3d 516, 521; Pen. Code, 1203.2, subd. (a).)[4] [O]nly in a very extreme case should an appellate court interfere with the discretion of the trial court in the matter of denying or revoking probation. . . . (People v. Rodriguez, supra, 51 Cal.3d at p. 443.) Here, the evidence showed that from an unobstructed vantage point, Lenoue observed the following activity: appellant passed what appeared to be rock cocaine to Copeland; Copeland placed money on the counter; appellant pocketed the money. Within minutes, Officer De La Cruz observed Copeland throw rock cocaine onto the sidewalk, as arresting officers approached him. Accepting the trial courts resolution of any inconsistencies in Lenoues recollection, whether the cocaine was wrapped or bare, we conclude this was substantial evidence to support the trial courts finding that appellant violated a condition of probation by possessing a narcotic and by committing a new offense.

2. Supplemental Probation Report

Appellant contends the trial court abused its discretion by sentencing him without first obtaining a current probation report. Section 1203, subdivision (b), requires a presentence probation report in all cases in which the defendant is eligible for probation.[5] Here, a probation report was prepared prior to appellants original sentencing hearing in 2004. Section 1203.2, subdivision (b), requires the court to obtain and consider a written report from the probation officer prior to the revocation of probation. (See also 1203.2, subd. (a).)[6] After appellants arrest on July 29, 2005, an early disposition report was prepared prior to the summary revocation of his probation on August 12, 2005. Appellant contends the trial court erred in not ordering a supplemental report on its own motion, prior to sentencing him on the probation violation.

A supplemental report is required for sentencing proceedings that occur a significant period of time after the original report was prepared. (Cal. Rules of Court, rule 4.411(c); see also People v. Dobbins (2005) 127 Cal.App.4th 176, 180-181 [eight months too long].) We agree that appellants January 2006 sentencing occurred a significant period of time after the original report was prepared in 2004. However, we do not agree the trial court failed to consider a supplemental probation report. Appellants argument appears to be based upon his contention that the August 2005 early disposition report was prepared for use only in case No. BA287749, the new criminal charge based upon the same incident as the probation violation -- the open case, as the parties called it before it was dismissed. However, as the report lists both case numbers -- the open case and the instant probation violation -- it is clear the report was intended to be for the courts use in both cases. Indeed, the report was considered in this case prior to sentencing. Thus, we reject any suggestion in appellants argument that no probation report was prepared after 2004.

As the Judicial Council Advisory Committee has commented, rule 4.411(c) 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. . . . (Advisory Com. com., Cal. Rules of Court, rule 4.411.) The Advisory Committee suggested that a period of less than six months may not be considered significant when there are no changed circumstances. (Ibid.)[7] Appellant contends more than six months elapsed between the August 2005 early disposition report and sentencing, a period sufficiently significant to require the court to obtain an updated report. Appellant has misread the record, placing sentencing on February 27, 2006, the date of filing the abstract of judgment. Appellant was sentenced January 23, 2006; thus the early disposition report in this case was prepared approximately five months prior to sentencing. Appellant has never indicated there were changed circumstances during the five-month interval; indeed, he was in custody during the entire time. Under such circumstances, we conclude no significant period of time elapsed between the August 2005 report and appellants sentencing in January 2006. (Cal. Rules of Court, rule 4.411(c).)

Appellant contends that even absent the requirement of an updated report, the trial court abused its discretion by failing to obtain one prior to imposing the upper term of imprisonment, because, he argues, the court had insufficient information to permit weighing the factors in aggravation and mitigation. The trial court selected the upper term, because appellant had suffered four prior convictions for possession of controlled substances for sale, including one for which he served a prison sentence in 2002. Those prior convictions are described in both the original probation report and the early disposition report. As respondent noted, An updated probation report would not have erased those convictions from appellants past.

Appellant has not suggested what mitigating factors might have been reflected in a new report. He did not advance any such factors at sentencing. In fact, the trial court asked if he wished to have a probation report prepared prior to sentencing, and appellant said, No. Appellant contends section 1203 precludes inferring a waiver from his response, because although he declined the supplemental report in open court, his response was not noted in the minutes. The preparation of the report or the consideration of the report by the court may be waived only by a written stipulation . . . or an oral stipulation in open court that is made and entered upon the minutes of the court . . . . ( 1203, subd. (b)(4).) Thus, we do not construe appellants no as a waiver. However, although we have found no express waiver, it is reasonable to infer that appellant had no reason to believe he would have benefited from a new report, as he not only rejected the trial courts offer to obtain one, but also failed to suggest any mitigating factors to include in the report.

It is appellants burden to show both error and prejudice. (People v. Archerd (1970) 3 Cal.3d 615, 643; see Cal. Const., art. VI, 13.) Error in failing to obtain a required supplemental probation report is reviewed under the standard of People v. Watson (1956) 46 Cal.2d 818. (People v. Dobbins, supra, 127 Cal.App.4th at p. 182.) Appellant has shown neither error nor prejudice. He showed no changed circumstances or the passage of a significant period of time between the preparation of the early disposition report and his sentencing. We conclude the trial court did not err in sentencing appellant without a probation report more recent than the early disposition report, and appellant has made no showing of a reasonable probability that a more recent report would have resulted in a more favorable sentence. (See People v. Watson, at p. 836.)

3. Discretionary Sentencing Choices

Appellant contends the trial court abused its discretion in sentencing him to prison, rather than reinstating his probation. He argues probation should have been reinstated, because his convictions had not been of escalating seriousness. Appellant acknowledges that he did not object on this ground at sentencing, and such a failure ordinarily results in a forfeiture of the issue on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 353 (Scott).) However, he contends an objection would be futile in light of his defense that the charge was a fabrication, and he did not possess or sell cocaine.

A futility exception to the requirement of a timely objection applies when it appears that an objection would not have cured the harm. (See People v. Boyette (2002) 29 Cal.4th 381, 432.) Ordinarily, a claim of futility is premised upon a claim that the trial court prevented an objection, or the court was so biased against appellant -- as evidenced by prior rulings -- that an appellate court might reasonably conclude further objections would have been futile . . . . (Ibid.) Appellant asserts neither circumstance.

The purpose of an objection to discretionary sentencing choices is to call them to the courts attention, so errors may be easily prevented and corrected. (Scott, supra, 9 Cal.4th at p. 353.) Appellant has failed to show that the trial court would have prevented any objection raised by appellant, or that it would have overruled an objection due to bias or any reason other than lack of merit. We conclude appellant has not preserved the issue for appeal.(See ibid.)

4. Apprendi/Blakely Error

Appellant contends his sentence violates his federal constitutional right to due process and a jury trial, because in choosing to impose the upper term, the court relied on his four prior convictions, without first affording him a jury trial as to the truth of the convictions, and because there were no court documents or admissions to prove them. (See Blakely v. Washington (2004) 542 U.S. 296, 303 (Blakely); Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi).)

The United States Constitution does not mandate a jury trial on prior convictions and any right to a jury trial would be purely statutory. (Apprendi, supra,530 U.S. at pp. 487-490; People v. Epps (2001) 25 Cal.4th 19, 23 (Epps); see  1025.) The United States Supreme Court has recently reaffirmed the exception for prior convictions. (Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 860, 868].) Thus, as appellant was not entitled to a jury trial on his prior convictions, Blakely and Apprendi have no application here. (See Epps, at p. 23; 1025; Apprendi, supra,at pp. 488 & 490.)

By statute in California, a defendant is afforded a jury trial only as to the fact of those prior convictions alleged in the accusatory pleading as statutory sentence enhancements. ( 1025; Epps, supra, 25 Cal.4th at pp. 29-30.) Prior convictions considered as aggravating factors for the purpose of imposing the upper term may be determined by the court upon facts shown in the probation report, as the trial court did here, and need be established only by a preponderance of the evidence. ( 1170, subd. (b); Cal. Rules of Court, rule 4.420(b).) Thus, the trial court properly relied on appellants criminal history as stated in the probation report.

5. Pitchess Motion

The trial court granted appellants Pitchess motion as to Officers Lenoue and Jarvis.[8] The record does not reflect the scope of the courts order granting the motion, but appellant had sought evidence of complaints filed against the officers indicating racial prejudice, dishonesty, false arrest, illegal search and seizure, or fabrication of charges or evidence. The trial court conducted an in camera review, and determined there were no discoverable items in the officers records that were not produced. Appellant requests that we review the trial courts determination.

The records produced in the trial court were not retained, but in the in camera hearing, the trial judge examined and described each one, and stated reasons for his determination. We have the sealed transcript of that hearing before us, and find it sufficient to review the trial courts determination, without having to order the production of the same documents in this court. (See People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229.) Upon review of the sealed record of the in camera proceedings, we conclude the trial court properly exercised its discretion in determining that the documents produced complied with the scope of the Pitchess motion, and that none of the documents or information should be disclosed to the defense, except appellants own complaint against the officers.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MANELLA, J.

We concur:

EPSTEIN, P. J. SUZUKAWA, J.

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[1]Pitchess v. Superior Court (1974) 11 Cal.3d 531; see City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81-82; Penal Code sections 832.7 and 832.8; Evidence Code sections 1043 through 1045.

[2] Appellant stipulated the item was analyzed by a Los Angeles Police Department chemist and determined to be cocaine base.

[3] Peoples exhibit 1 includes photographs of the rock cocaine. One depicts the rock as recovered, apparently tightly wrapped in clear plastic, with a short twisted tail at one end. Another photograph depicts the rock in the baggie into which De La Cruz placed it before turning it over to Officer Lenoue. Whether it is also wrapped in plastic is not discernible in the photograph.

[4] All further statutory references are to the Penal Code, unless otherwise indicated.

[5] There is no indication that appellant was ineligible for probation.

[6]People v. Santellanes (1989) 216 Cal.App.3d 998, which appellant discusses at length, is inapplicable, and does not undermine the procedure followed here. Santellanes was concerned with evidence supporting a revocation, not sentencing. There, unlike here, the court had not obtained a report prior to revoking the defendants probation, but had relied upon evidence adduced at the preliminary hearing on the new charge. (See id. at p. 1003.) The appellate court held that a probation officers report is not a prerequisite to revocation of probation, where revocation is based on a violation established by independent evidence, as long as a probation report is obtained, read and considered at the subsequent sentencing hearing during which reinstatement of probation is considered. (Id. at p. 1005.) Appellant has not challenged the summary revocation of his probation.

[7] Appellant refers to the Advisory Committees additional comment that a report within six months with no changed circumstances is sufficiently recent, particularly . . . if a report is needed only for the Department of Corrections and Rehabilitation because the defendant has waived a report and agreed to a prison sentence. (Advisory Com. com., Cal. Rules of Court, rule 4.411.) He omits particularly from his paraphrase of the comment, arguing the report cannot be considered sufficiently recent, because he did not agree to a prison sentence. As particularly cannot be construed as meaning only, that portion of the comment is simply irrelevant where a defendant has not agreed to a prison sentence.

[8] See footnote 1, ante.