P. v. Camacho
Filed 6/15/07 P. v. Camacho CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. BERNARDO TITO CAMACHO, Defendant and Appellant. | E039873 (Super.Ct.No. RIF119314) OPINION |
APPEAL from the Superior Court of Riverside County. Paul E. Zellerbach and Roger A. Luebs, Judges.* Affirmed.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, and Raquel M. Gonzalez, Deputy Attorney General, for Plaintiff and Respondent.
A complaint charged defendant with (1) spousal abuse under Penal Code section 273.5, subdivision (e) (count 1); (2) false imprisonment by violence under Penal Code section 236[1](count 2); and (3) felony evading under Vehicle Code section 2800.2 (count 1).
On October 5, 2004, defendant pleaded guilty to count 1, spousal abuse, and the trial court dismissed counts 2 and 3. Thereafter, the court suspended the imposition of sentence and placed defendant on probation for a term of 36 months on various terms and conditions, including the condition that defendant serve 180 days in local custody on consecutive weekends.[2] Additionally, defendant was ordered to enroll in a domestic violence program.
On March 2, 2005, defendants probation was revoked, and a bench warrant was issued. At a contested probation violation hearing, the trial court found defendant in violation of four terms of probation. The trial court sentenced defendant to the upper term of five years in state prison.
On appeal, defendant contends that the erred in (1) finding that defendant violated the terms of his probation; (2) denying his motion for appointment of a mental health professional; and (3) sentencing him to the upper term. For the reasons set forth below, we shall affirm the judgment.
I
FACTUAL AND PROCEDURAL HISTORY[3]
A. The Underlying Charge
In the early morning hours of September 19, 2004, defendant, as he was driving, hit his passenger, the victim. Defendant had previously subjected the victim to domestic violence. On the morning of September 19, defendant used his elbow to hit the victim in her left eye, causing bruising and a two-inch swelling on the eye socket. With the car still moving, the victim tried to get out. Defendant, however, struggled to get the victim back inside the car.
A male witness saw the victim crying and screaming as defendant tried to drag her into the car. To the witnesss inquiry, defendant replied, Mind your own fucking business.
When a deputy attempted to initiate a stop on defendants vehicle, using lights and sirens, defendant raised his arm and made a gesture with his middle finger as he fled; he led police in a chase through Riverside and Moreno Valley. Defendant was arrested in his driveway.
After waiving his Miranda[4] rights, defendant told police that he argued with the victim about her not taking her medications. Defendant explained that the victims injury had occurred while they were playing around inside his cramped car.
B. Probation Violation Hearing
On April 8, 2005, defendant was arraigned for violating the terms of his probation. Defendant denied the violations.
In a report filed on April 13, 2005, the probation officers memorandum alleged that the following conditions had been violated by defendant:
(1) Condition No. 1 ‑‑ defendant obey all laws ordinances;
(2) Condition No. 2 ‑‑ local custody time to be served consecutive weekends starting on October 29, 2004;
(3) Condition No. 9 ‑‑ defendant report to the probation officer for initial instructions;
(4) Condition No. 11 ‑‑ defendant enroll in a 52-week domestic violence program within 30 days of the probation order; and
(5) Condition No. 13 ‑‑ defendant reside in a residence approved by the probation officer and not move without prior consent.
The probation officers memorandum also stated that on April 6, 2005, defendant was arrested for several warrants, which included violations of Penal Code section 490.5 (petty theft) and Vehicle Code section 12500, subdivision (a) (driving without a license). The probation officer additionally noted that defendant failed to start serving his weekend custody by the new date of January 12, 2005; failed to enroll in the domestic violence program by the new date of January 5, 2005; and failed to inform the probation department about his new address or any pending move and refused to state where he was staying. The memorandum noted that defendant had repeatedly missed his scheduled office appointments with the probation department.
The minute order from the April 13, 2005, probation hearing noted that defendant was disruptive and argumentative in court; he was sent back to jail for security reasons. The hearing was continued to April 20, 2005. After further continuances because of defendants disruptive behavior, a hearing was finally held on May 4, 2005. At the hearing, the trial court ruled that defendant had violated probation condition numbers 2, 9, 11, and 13.
At the sentencing hearing on December 28, 2005, defendant was sentenced to the upper term of five years in state prison. Defendant appeals.
II
ANALYSIS
A. The Trial Court Properly Found that Defendant Violated the Terms of His
Probation
Defendant claims that the trial court erred in finding that defendant violated the terms of his probation because the prosecution failed to prove the [probation] violations with competent, reliable evidence. (Capitalization omitted.)
1. The probation revocation hearing
At the probation revocation hearing, Riverside County Deputy Probation Officer Charles Roberts testified as the sole prosecution witness. Officer Roberts identified defendant in open court. He testified that he was familiar with defendants file, had prepared a report in this case, and had reviewed the file before attending the probation revocation hearing.
Officer Roberts testified that probation term No. 1 required defendant to obey all laws and ordinances. Thereafter, the prosecutor requested that the trial court take judicial notice that there was a new case filed against defendant, with an arrest date of December 23, 2004. The trial court stated that it had the file on the new case. The court noted that the alleged offense was a violation of section 490.5 (petty theft of retail merchandise or library materials), which was committed on December 13, 2004. The probation officer then testified that, based on this new offense, defendant violated probation term No. 1.
Officer Roberts also reported that defendant violated probation term No. 2, which required defendant to complete his weekend custody time, 180 days. Although the probation officer could not recall the exact number of custody days completed by defendant, he testified that he knew that defendant had not completed his weekend commitment.
When the officer testified that he reported defendant for violating term No. 2, defense counsel objected on foundation grounds; counsel stated that it was not known how Officer Roberts knew any of the information about defendants failure to complete weekend commitment time. After the trial court sustained defense counsels objection, the probation officer stated that defendants file contained two notices of failure to report that had been filed by the sheriffs department. Officer Roberts believed that these notices had been mailed. Also, Officer Roberts testified that he had checked the computer at the sheriffs department to confirm the information on the notices of failure to report.
Regarding defendants violation of term No. 9, failure to report to a probation officer, Officer Roberts testified that computer entries from the probation departments computer showed that defendant failed to report to Probation Officer Ferreol Vidana. Officer Roberts stated that defendant reported to Officer Vidana on occasion. Defendant, however, was required to report additional times and failed to do so.
On cross-examination, Officer Roberts testified that Officer Vidana was defendants direct probation officer. Officer Roberts recalled reading entries in the file about defendant indicating that he had family issues, which made it difficult to comply with the weekend commitments. Officer Roberts stated that he did not know if Officer Vidana had personally given defendant an extension or reinstated him on either the weekend commitments or anger management. On redirect examination, however, Officer Roberts clarified that if there had been such exceptions or reinstatements of probation, this information would have been in the computer.
Furthermore, Officer Roberts testified that defendant violated two other terms of his probation: (1) Term No. 11 ‑‑ defendant enroll in and complete a 52-week domestic violence program, and (2) Term No. 13 ‑‑ defendant reside at an approved location or residence. Officer Roberts testified that defendants family residence was an approved location. However, when Officer Roberts and other officers tried to contact defendant at his family residence, family members stated that defendant no longer resided there.
The trial court asked Officer Roberts about defendants violation of term No. 11, inquiring if Officer Roberts had specific information regarding defendants noncompliance. Officer Roberts testified that he received two notices indicating that defendant had failed to appear for the classes.
Thereafter, the trial court took judicial notice of (1) defendants three pending traffic ticket matters, as requested by defense counsel; and (2) the courts files in the new misdemeanor petty theft case, as discussed above.
Defendant testified on his own behalf. When asked why he failed to complete his weekend work program, probation term No. 2, defendant testified that he believed that his traffic tickets were taken care of at the time he agreed to the terms of his probation, so he could have his license reinstated in order to drive to the weekend program in Banning. However, his traffic tickets were not resolved, and he could not have his license reinstated. Therefore, defendant actively sought to have his traffic ticket cases put on the courts calendar to resolve issues related to the traffic tickets.
Moreover, defendant testified that he failed to appear at the hearing on March 2, 2005, because he had an ongoing CPS case involving his daughter, who was sick and whom he and the mother were allowed to visit only one day a month, which happened to be on that court date.
Furthermore, defendant testified that he believed that he had until January of 2007 to complete the ordered anger management classes.
At the conclusion of the hearing, the trial court found the filing of a criminal complaint was insufficient evidence to find that defendant was in violation of probation term No. 1, that he violate no law or ordinance. The trial court then went on to find that defendant violated probation terms No. 2, 9, 11, and 13, based on clear and convincing evidence.
2. Discussion
Defendant claims that the trial court erred in finding that he violated the terms of his probation because the court relied on entirely unreliable and untrustworthy information. The People argue that defendant forfeited the claim of evidentiary error because he failed to object to the evidence during the revocation hearing. We need not address the Peoples argument, because defendants argument fails.
In this case, even if defendant could establish evidentiary error, admitting such evidence was harmless. As the trial court noted at the probation revocation hearing, defendant ‑‑ in his testimony ‑‑ admitted that he violated probation term No. 2. The trial court stated: As to Term No. 2, it is quite clear to the Court that [defendant], even by his own testimony, did not even enroll, or attempt to enroll for that matter, for his weekend custody commitment.
As summarized above, defendant testified that he did not report to begin serving the weekend custody commitment because he did not possess a license to drive to the location for his commitment.
Moreover, as to probation term No. 11, defendant admitted that he had failed to enroll in the court-ordered anger management program; he believed that he had to complete his weekend commitment first.
In sum, because defendants testimony at the probation revocation hearing established that he violated probation condition terms No. 2 and 11, any perceived evidentiary error was harmless.
In a related argument, defendant claims ineffective assistance of counsel (IAC) because his counsel failed to object to Officer Robertss testimony. In order to prevail on an IAC claim, defendant must establish not only that his counsels performance was deficient, but also that it caused defendant prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 491 [104 S.Ct. 2052, 80 L.Ed.2d 674].)
We need not address defendants IAC argument, however, because as discussed above we have analyzed defendants claim of evidentiary error despite lack of an objection below. Moreover, even if counsels performance were deficient, defendants IAC argument would fail because defendant would be unable to establish prejudice ‑‑ defendant admitted to violating probation condition terms No. 2 and 11.
In conclusion, we find that the trial court properly found that defendant violated the terms of his probation.
B. The Trial Court Did Not Abuse Its Discretion in Denying Defendants Motion for the Appointment of a Mental Health Professional
Defendant contends that the trial court abused its discretion in denying his motion for appointment of a mental health expert. We disagree.
1. Standard of review
On a showing of necessity, the trial court must provide an indigent defendant expert defense services. (People v. Worthy (1980) 109 Cal.App.3d 514, 521.) The defendant has the burden of showing indigency and the reasonable necessity for such services. (Ibid.; Puett v. Superior Court (1979) 96 Cal.App.3d 936, 939.) A trial courts order denying such services is reviewed for abuse of discretion. (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 321.)
2. Discussion
In March v. Municipal Court (1972) 7 Cal.3d 422, 429, the court stated, Although there are no cases specifically establishing criteria by which the trial court is to determine indigency for purposes of providing transcripts at public expense, the same criteria governing applications to proceed in forma pauperis for purposes of eliminating filing fees are applicable. Government Code section 68511.3 sets forth the procedures for establishing indigency for purposes of proceeding in forma pauperis. A party seeking such status must file a declaration under penalty of perjury that he or she is receiving welfare benefits or must file a financial statement under oath on a prescribed Judicial Council form. (Gov. Code, 68511.3, subd. (b).)
In this case, after the revocation of probation hearing, while the sentencing hearing was pending, defense counsel ‑‑ a public defender ‑‑ was relieved; defendants family hired a private attorney to represent defendant. Defendants new counsel submitted a written motion requesting appointment of a mental health professional at court expense. Defendants written declaration was included with the motion. In his declaration, defendant stated as follows:
1. I am poor.
2. I do not have any money.
3. I am in jail.
4. I had a job in the past and I sometimes have uncontrollable urges and can not [sic] keep those jobs that Ive had.
On October 19, 2005, the trial court denied defendants motion for appointment of a mental health professional. It found that defendants declaration [was] merely conclusory and [did] not contain the detailed financial information necessary for the court to find indigency.
Here, based on the declaration filed in support of the motion for appointment of a mental health professional, we cannot find the trial courts finding to be irrational or arbitrary. [A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (People v. Carmony (2004) 33 Cal.4th 367, 377.)
Therefore, we discern no abuse of discretion.
C. The Trial Court Properly Sentenced Defendant
Defendant contends that the trial court denied him his federal constitutional right to a jury trial and due process when it sentenced him to the upper term in violation of Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 435]. In his reply brief, filed after Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), defendant argues that Cunningham requires that a jury find aggravating factors before a trial court may impose the upper term.
The People contend that defendant has forfeited his claim of error because his counsel failed to object at sentencing on grounds that there was no jury finding on the circumstances in aggravation invoked by the trial court to select the upper term . . . . We need not discuss the waiver argument because defendants claim fails on the merits.
Citing Blakely v. Washington, supra, 542 U.S. 296 and Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 230 S.Ct. 2348], defendant argues that imposing the upper term violated his federal constitutional rights to a jury trial and due process because the findings in aggravation were made by the trial court and not by a jury.
At the sentencing hearing on December 28, 2005, defendants private counsel commended the trial court and the fairness of the criminal system for allowing defendant to be seen by a jail psychiatrist and placed in therapy. Defense counsel noted that Dr. Mitch, the prescribing physician at the jail, had prescribed antidepressants for defendant and that defendant was receiving therapy once a week. Defendant last attended therapy on December 20, 2005. Defense counsel further reported that there had been a change in defendants attitude resulting from the drugs and course of therapy provided at the jail. Defense counsel noted that these recent developments were not discussed in any of the probation reports. Defense counsel requested that the trial court consider these changes when imposing defendants sentence.
The trial court agreed with defense counsel that defendants recent criminal behavior is attributable at least in part to a mental health condition that may have not been treated. That is to some extent a mitigating factor that does not appear in the report. The court, however, found that the mitigating factor was significantly outweighed by the aggravating factors ‑‑ i.e., defendants lengthy criminal history dating back 20 years, including significant records of violence, and defendants poor performance on past probation grants and the instant probation. The court therefore sentenced defendant to the upper term of 5 years.
Cunningham held that Californias determinate sentencing law violates Apprendis bright-line rule that any fact that increases the penalty for a crime beyond the statutory maximum must be proved beyond a reasonable doubt to a jury. (Cunningham, supra, 127 S.Ct. at p. 868.) Therefore, the trial court could not impose the upper term because the facts used to increase the term were not found by a jury beyond a reasonable doubt, namely, his record of increasing seriousness, his parole performance, the convictions impact, the victims vulnerability, or his use of a knife.
However, Cunningham reaffirms that a prior conviction can increase the sentencing penalty. (Cunningham, supra, 127 S.Ct. at p. 868 [[e]xcept for a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury (italics added).) Prior convictions are traditional sentencing factors used by a judge and need not be submitted to a jury to support a sentence. (United States v. Booker (2005) 543 U.S. 220, 244 [125 S.Ct. 738, 160 S.Ed.2d 508].) Any other fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury. (Ibid.; Apprendi v. New Jersey, supra, 530 U.S. at p. 490.)
Even if we were to assume that defendant was entitled to a jury trial on the issue of whether the upper term should be imposed, defendant could not prevail. [T]he finding of even one factor in aggravation is sufficient to justify the upper term. [Citation.] (People v. Steele (2000) 83 Cal.App.4th 212, 226.) Here, the trial court found that defendant had a lengthy criminal history going back some 20 years[,] including significant records of violence, behavior that cant be tolerated within the community. Moreover, the trial court found that defendant has been on probation and parole several times and does not appear to do well on probation and didnt do well this time on probation. The fact that a defendant suffered a prior conviction is sufficient to support the imposition of the maximum penalty in a sentencing range. (Jones v. United States(1999) 526 U.S. 227, 248-249 [119 S.Ct. 1215, 143 L.Ed2d 311].) [R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. (Apprendi v. New Jersey, supra, 530 U.S. atp. 488.)
Consequently, defendants attack on the upper term lacks merit because imposition of the maximum term is traditionally allowed where a defendant has sustained a prior conviction.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
RAMIREZ
P.J.
McKINSTER
J.
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* Judge Zellerbach made the May 4, 2005, ruling finding defendant in violation of his probation. Judge Luebs denied defendants motion for appointment of a mental health professional on October 19, 2005, and sentenced defendant on December 28, 2005.
[1] All statutory references are to the Penal Code unless otherwise specified.
[2] Defendants sentence was to be served concurrently with one pending misdemeanor matter and two pending traffic matters.
[3] Because defendant entered a plea of guilty prior to the preliminary hearing, the factual background is taken from the probation report.
[4]Mirandav.Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
