Filed 5/15/18 P. v. Townsend 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Calaveras)
----
THE PEOPLE,

Plaintiff and Respondent,

v.

WAYNE ERIC TOWNSEND,

Defendant and Appellant.


C080147 and C081153

(Super. Ct. No. 15RP6480)



Appointed counsel for defendant Wayne Eric Townsend asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.
I
Case No. C080147
On January 14, 2015, the Calaveras County Probation Department filed a petition to revoke defendant’s community supervision. The petition said defendant was placed on postrelease community supervision on December 29, 2014 for a violation of Penal Code section 417.8 [drawing or exhibiting of a deadly weapon with intent to resist or prevent arrest or detention by a peace officer], and that supervision was scheduled to terminate on December 28, 2017. The petition alleged defendant violated the condition of supervision that he obey all laws by violating section 148 [resisting an officer] and section 647, subdivision (f) [public drunkenness], and he also violated the condition of supervision that he abstain from the use of alcohol. The petition said there were no previous violations. Defendant admitted he had been intoxicated and that he violated a condition of his supervision by failing to abstain from alcohol on January 8, 2015. The trial court revoked and reinstated postrelease community supervision on the same conditions, with an additional 90 days in county jail.
On March 13, 2015, the probation department filed a second petition to revoke community supervision. The petition alleged that defendant violated conditions of supervision by failing to successfully complete a six-month residential treatment program as directed by the probation officer. Defendant had been transported to the Salvation Army Residential Treatment Program in San Francisco on March 6, 2015, and left the program the same day. The petition further alleged defendant had violated a condition of supervision by failing to inform the probation officer of his place of residence. The petition alleged defendant had been referred to a residential treatment program and given flash incarceration for prior violations. Defendant admitted failing to complete the six-month residential treatment program by walking away from the Salvation Army. The trial court revoked and reinstated postrelease community supervision, with an additional 180 days in jail.
On July 27, 2015, the probation department filed a third petition to revoke postrelease supervision. The petition alleged that on July 24, 2015, defendant violated conditions of supervision by failing to abstain from the use of alcohol and by failing to obey all laws (violating section 647, subdivision (f) [drunk in public] and section 148, subdivision (a) [resisting a police officer]). The petition alleged defendant had been referred to a residential treatment program and had twice been given flash incarcerations for prior violations. Defendant admitted violating the conditions of supervision and the trial court sentenced him to 180 days in jail.
Defendant filed a notice of appeal and obtained a certificate of probable cause to challenge the validity of his admission.

Case No. C081153
On October 30, 2015, the Calaveras County Probation Department filed a petition to revoke community supervision. The petition alleged defendant violated conditions of supervision (1) by failing to inform the probation officer of his place of residence after leaving his brother’s home on October 25, 2015; (2) by failing to obtain permission from the probation officer prior to travelling more than 50 miles from his place of residence when he traveled to Alameda County on October 25, 2015; (3) by failing to remain at his residence between the hours of 10:00 p.m. and 6:00 a.m. on October 25, 2015; and (4) by failing to appear for scheduled drug testing. The petition further alleged that defendant had been referred to a residential treatment program for a prior violation.
Prior to entering an admission, defendant sought to relieve his counsel based on ineffective assistance. (People v. Marsden (1970) 2 Cal.3d 118 (Marsden).) During a Marsden hearing, defendant complained that his attorney was ineffective for failing to request dismissal of the petition. He claimed the petition did not include a statement of reasons why intermediate sanctions without court intervention were not appropriate, as required by California Rules of Court, rule 4.541(e). The trial court said it thought the requirement had been satisfied, but in any event, it did not think dismissal of the petition was the appropriate remedy for failure to include the statement. Defense counsel indicated the current offer from the prosecution was in defendant’s best interest. The trial court denied defendant’s Marsden motion.
Defendant subsequently admitted the allegations in the petition in exchange for the prosecution’s agreement to dismiss a separately filed misdemeanor case. The trial court sentenced defendant to 180 days in jail.
Defendant filed a notice of appeal and obtained a certificate of probable cause to challenge the validity of his admission.
II
Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief.
Defendant filed a supplemental brief asserting that the probation department did not comply with statutory requirements in providing the trial court with the petition to revoke his community supervision. We requested supplemental briefing from the parties, asking them to address whether defendant’s trial counsel was deficient in failing to challenge the sufficiency of the petition for revocation of postrelease supervision for lack of compliance with rule 4.541(e), and if so, whether defendant suffered prejudice as a result. (See Williams v. Superior Court (2014) 230 Cal.App.4th 636, disapproved on another ground as stated in People v. DeLeon (2017) 3 Cal.5th 640, 653; People v. Osorio (2015) 235 Cal.App.4th 1408, disapproved on another ground as stated in DeLeon, supra, 3 Cal.5th at p. 646.)
Defendant claims his due process rights were violated because probation failed to comply with section 3454 and rule 4.541(e). Those provisions require the petition to include a statement of reasons why the supervising agency has determined intermediate sanctions without court intervention are not appropriate. (Rule 4.541(e); Williams v. Superior Court, supra, 230 Cal.App.4th at pp. 651-652, 664-665.) But a demurrer is the appropriate remedy if a petition is insufficient. (People v. Osorio, supra, 235 Cal.App.4th at pp. 1412-1416.) “ ‘[A] demurrer raises an issue of law as to the sufficiency of the accusatory pleading, and it tests only those defects appearing on the face of that pleading.’ [Citation.]” (People v. Manfredi (2008) 169 Cal.App.4th 622, 626; see Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1090.) Because defendant did not file a demurrer to the petition on the ground he now asserts, he forfeited this issue for appellate review. (People v. Upsher (2007) 155 Cal.App.4th 1311, 1318.)
The supervising agency included a separate statement in the petitions indicating what previous intermediate sanctions had been implemented. To the extent rule 4.521(e) required a more specific statement of reasons why the supervising agency had determined intermediate sanctions were not appropriate, defendant was required to raise that issue by demurrer before entering his admissions. He did not do so. (People v. Upsher, supra, 155 Cal.App.4th at p. 1318 [to avoid forfeiture, “[o]bjections to defects in the form of an accusatory pleading must be made by way of demurrer”]; see People v. Jennings (1991) 53 Cal.3d 334, 356-357.)
Defendant asserts that if his claim is forfeited, he received ineffective assistance of counsel. “To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. [Citation.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212.) “ ‘If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.’ ” (People v. Holt (1997) 15 Cal.4th 619, 703.)
Defendant argues trial counsel offered no explanation at the Marsden hearing for not seeking dismissal of the petition, suggesting he could have no rational tactical reason for failing to seek such a dismissal. We disagree. The prosecution offered to dismiss a newly filed misdemeanor in exchange for defendant admitting the violation and accepting reinstatement with jail time. Defense counsel explained that defendant had no defense to the petition for revocation and that the prosecution’s offer was in defendant’s best interest. Had defense counsel filed a successful demurrer to the petition, it could have been re-filed, but there would be no guarantee the prosecution’s offer would be offered again. Defendant would then be subject to the same violation of community supervision and would also have to defend against the new misdemeanor. Thus, based on trial counsel’s comments, there was a rational tactical reason for not filing the demurrer, as desired by defendant.
Defendant further argues that, because the petition did not expressly set forth the specific reasons intermediate sanctions were determined to be inappropriate, we must assume the supervising agency did not bring defendant before the supervising agency for purposes of assessing his postrelease supervision program, or make the determination that intermediate sanctions were inappropriate, as required by sections 3454, 3455, and rule 4.541. To the contrary, it is not required that the petition state those functions were performed and we presume that they were. (Evid. Code, § 664.) Our presumption is supported by the fact that, unlike many of the previous circumstances surrounding defendant’s other instances of noncompliance, intermediate sanctions were bypassed and the supervising agency was seeking court intervention.
In any event, we conclude there was no prejudice. Defendant has a substantial criminal history, including five felony convictions, 38 misdemeanor convictions, 16 violations of parole, and 10 violations of probation that resulted in further incarceration. In 2015 alone, he was referred to residential treatment at least once and given flash incarceration at least twice as intermediate sanctions. The trial court revoked and reinstated his community supervision on several occasions. Defendant committed three new violations of his supervision terms in case No. C080147, and four new violations of his supervision terms in case No. C081153. He was still drinking alcohol, committing crimes, and refusing to maintain the residential and reporting requirements. He walked away from residential treatment. The trial court noted the “extensive nature” of defendant’s record in stating that the sentence imposed was appropriate. Under the circumstances, it is not reasonably probable that defendant would have fared better had trial counsel demurred to the petition.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.



/S/
MAURO, J.



We concur:



/S/
BLEASE, Acting P. J.



/S/
MURRAY, J.