P.v . Weatherspoon

Filed 9/12/07 P.v . Weatherspoon CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Gary J. Ferrari, Judge. Affirmed.

California Appellate Project, Jonathan B. Steiner, Executive Director, and Richard L. Fitzer, Staff Attorney, under appointments 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, Senior Assistant Attorney General, Marc E. Turchin and Susan D. Martynec, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________________________

Following a no contest plea, defendant Derrick Weatherspoon was convicted of driving a vehicle with willful or wanton disregard for the safety of persons or property while evading a pursuing peace officer in violation of Vehicle Code section 2800.2, subdivision (a). The trial court suspended imposition of sentence and placed defendant on three years probation, with conditions including completion of 60 days of work for the California Department of Transportation (Caltrans). The court also imposed a $200 restitution fine under Penal Code section 1202.4, subdivision (b). Defendants probation was revoked after a formal violation hearing because defendant failed to timely complete his CALTRANS service, lied to the probation officer about the amount of service he had completed, and altered the CALTRANS referral form to give him additional time to complete his service. The trial court sentenced defendant to the midterm of two years in state prison, finding defendants deceitful conduct while on probation made a low-term sentence inappropriate.

In his timely appeal, defendant contends his trial counsel rendered constitutionally ineffective assistance in violation of the Sixth Amendment by failing to object to the trial courts improper consideration of defendants conduct after probation was grantedincluding defendants incomplete performance of his CALTRANS work and the deception he employedin selecting the midterm as the appropriate sentence. We affirm. Regardless of whether counsel culpably failed to object, there was no reasonable probability of prejudice because defendant received the presumptive midterm sentence and the record discloses no factor in mitigation that would have warranted imposition of the low term.

BACKGROUND

Defendant does not challenge the finding that he violated the terms of his probation. Accordingly, we relate only those facts bearing on the imposition of his midterm sentence. At defendants original sentencing hearing on November 15, 2005, the trial court suspended imposition of sentence and placed defendant on three years formal probation with a variety of conditions, including payment of a $200 restitution fine, 60 days of CALTRANS service, and that defendant obey all laws, orders, rules, and regulations of the court and the probation department.

A probation revocation hearing was held on November 6, 2006. Defendants probation officer, Valerie Kane, testified that defendant was instructed to report to the CALTRANS volunteer center within 30 days of the grant of probation and to do his service consistently. Defendant was given six months to complete his service. During that time, defendant repeatedly told Kane that he was performing his CALTRANS service. At a scheduled meeting on September 26, 2006, defendant told Kane that he had completed 32 days of servicewhen, in fact, he had only completed two days. Kane responded that she would confirm his representations with the CALTRANS volunteer center. While she was on the telephone with CALTRANS personnel, defendant told Kane that he was in trouble. Meanwhile, the CALTRANS representative informed Kane that defendant had not registered with the center until September 2006, which was after the six-month completion date. At Kanes request, the representative faxed the probation department referral document that defendant had provided to CALTRANS. Defendant admitted to Kane that he had altered the document by changing the completion date from May 15, 2006, to December 15, 2006. Defendant admitted to Kane that he had lied to her about the days he had served and falsified the document. At the hearing, defendant admitted the alleged misconduct and apologized for it.

After probation was revoked, the prosecution argued for imposition of the midterm sentence, based on the dangerous and irresponsible nature of defendants conduct in the underlying offense, along with his subsequent misconduct in attempting to deceive the probation officer. Moreover, the prosecution argued there was no justification for imposing the low term. Defense counsel argued that probation should be reinstated, but when it became apparent that the trial court would not do so, counsel argued for the low term because defendant had no felony convictions and was a young man. The trial court imposed the two-year midterm sentence, explaining that a low term was not appropriate because defendant lied to the court and the probation officer. Additionally, the court imposed a $400 restitution fine.

DISCUSSION

Ineffective Assistance of Counsel Claim

Defendant contends his trial counsel rendered constitutionally ineffective assistance in violation of the Sixth Amendment by failing to object to the trial courts consideration of circumstances occurring after the court granted probation to defendant. We disagree.

To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsels performance fell below an objective standard of reasonableness, i.e., that counsels performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsels shortcomings. (People v. Cunningham (2001) 25 Cal.4th 926, 1003, citing Strickland v. Washington (1984) 466 U.S. 668, 687-694; Williams v. Taylor (2000) 529 U.S. 362, 391-394; People v. Kraft (2000) 23 Cal.4th 978, 1068.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v.. Washington, supra, 466 U.S. at p. 694; People v. Riel (2000) 22 Cal.4th 1153, 1175.) (People v. Cunningham, supra, 25 Cal.4th at p. 1003.) A reviewing court need not determine whether counsels performance was deficient before examining prejudice suffered by defendant as result of alleged deficiencies: If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. (Strickland v. Washington, supra, 466 U.S. at p. 697.) Of course, mere speculation does not meet the Sixth Amendment standard for demonstrating prejudice. (E.g., In re Clark (1993) 5 Cal.4th 750, 766.)

The parties agree that it is improper for a sentencing court to consider events occurring after the granting of probation in determining the length of the sentence to be imposed after probation revocation. When imposition of sentence is originally suspended, and the court imposes sentence after a violation of probation, the termination of probation requires that the court impose sentence on the original offense. (People v. Billetts (1979) 89 Cal.App.3d 302, 309.) However, California Rules of Court rule 4.435(b)(1) provides that the length of the sentence shall be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term . . . . Additionally, it is established that a claim involving the trial courts failure to properly make or articulate its discretionary sentencing choice is forfeited if not raised at the time of sentencing. (People v. Scott (1994) 9 Cal.4th 331, 353.)

Under the facts of this case, however, we need not determine whether defense counsels failure to object to the trial courts apparent reliance on post-probation circumstances violated Stricklands performance criterion because it is clear that any such defalcation would have been non-prejudicial under the Sixth Amendment standard. The sentencing court was constrained by Penal Code section 1170, subdivision (b), which provides that the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. (Cunningham v. California (2007) ___ U.S. ___, ___ [127 S.Ct. 856, 861-862]; Cal. Rules of Court, rules 4.420(a), 4.420(b).) Indeed, once the sentencing court has rejected probation it need not state reasons for imposing the middle term of imprisonment as distinguished from the upper or lower term. (People v. Arceo (1979) 95 Cal.App.3d 117, 121; accord, People v. Lobaugh (1987) 188 Cal.App.3d 780, 786.)

Here, our review of the record discloses no factor in mitigation that would have warranted imposition of the low term, rather than the presumptive midterm. California Rules of Court, rule 4.423 lists the mitigating factors relating to defendants. Of those six factors, the only one defendant asserts would have been applicable was the first: The defendant has no prior record, or has an insignificant record of criminal conduct, considering the recency and frequency of prior crimes. (Cal. Rules of Court, rule 4.423(b)(1).) While defense counsel accurately represented that defendant had suffered no felony convictions, the record shows defendants history of criminal conduct was anything but insignificant. Defendants record begins in 2001 with a sustained juvenile petition for taking a vehicle without the owners consent and being placed home on probation. Thereafter, defendant suffered convictions for petty theft, marijuana possession (three times), and driving with a suspended or revoked license (twice). As a further aggravating circumstance, defendant committed the underlying offense while on summary probationand apparently did so while driving on a suspended or revoked license.

Defendants criminal history of one sustained juvenile petition and five misdemeanor convictions in a four-year period does not support any recognized mitigating factor. To the contrary, it tends to support at least three aggravating factors: prior convictions or sustained juvenile petitions that are numerous or of increasing seriousness, being on probation or parole when the crime was committed, and unsatisfactory prior performance on probation or parole. (Cal. Rules of Court, rule 4.421(b).) Given defendants criminal history, we hold there is no reasonable probability that defendant would have obtained a more favorable result absent counsels shortcomings. (People v. Cunningham, supra, 25 Cal.4th at p. 1003, citing Strickland v. Washington, supra, 466 U.S. at pp. 687-694; Williams v. Taylor, supra, 529 U.S. at pp. 391-394.)

Restitution Fine

When the sentencing court placed defendant on probation, it imposed a $200 restitution fine. Upon revocation and sentencing, however, it imposed a $400 fine. The parties correctly agree that the trial court had no statutory authority to increase the restitution fine, and its increased assessment amounted to an illegal sentence that must be corrected on appeal. (People v. Arata (2004) 118 Cal.App.4th 195, 202; People v. Chambers (1998) 65 Cal.App.4th 819, 823.) Because the parole revocation fine pursuant to section 1202.45 is fixed as the same amount as the restitution fine pursuant to section 1202.4, subdivision (b), the parole revocation fine also must be reduced to $200.

DISPOSITION

The restitution fine imposed pursuant to section 1202.4, subdivision (b), is reduced to $200. The parole revocation fine imposed pursuant to section 1202.45 is reduced to $200. The trial court is to insure that a corrected abstract of judgment is delivered in a timely fashion to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J. MOSK, J.

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