P. v. Rankin

Filed 7/26/07 P. v. Rankin CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielson, Judge. Affirmed.

I.

INTRODUCTION

Arthur Francis Rankin pled guilty to inflicting corporal injury on a cohabitant (Pen. Code,  273.5)^[1] (count 1). Rankin also admitted that he personally inflicted great bodily injury upon the victim within the meaning of section 12022.7, subdivision (a). At sentencing, the trial court determined that Rankin was presumptively ineligible for probation, pursuant to section 1203, subdivision (e)(3). The trial court further found that this case was not an "unusual case within the meaning of the sentencing rules," and denied probation. The court sentenced Rankin to a total term of five years in prison.

On appeal, Rankin claims the trial court erred under People v. Lewis (2004) 120 Cal.App.4th 837, 854 (Lewis), in determining that he was presumptively ineligible for probation pursuant to section 1203, subdivision (e)(3), because the court did not find that Rankin willfully inflicted great bodily injury. Rankin also claims that the trial court erred in failing to find that his case was an unusual one, meriting a sentence of probation. Rankin further claims that he must be allowed to withdraw his plea because the trial court failed to "follow through on [its] representation" that the court would find the case to be an unusual one, and would grant him probation if it were determined that Rankin had a mental disorder for which there was effective treatment available.

We affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. The underlying offense^[2]

At approximately 1:00 a.m. on October 8, 2005, Rankin and his girlfriend, Linda McCoy, were walking in the 1600 block of Sixth Avenue in San Diego. The

couple were arguing about whether they should move to Arizona. During the argument, Rankin punched McCoy once in the chin. McCoy punched Rankin in response.

At approximately 9:30 a.m. that morning, citizens flagged down a police car and led the officers to Rankin and McCoy, who were standing in a parking lot near Sixth Avenue and Fir Street. The officers noticed that McCoy had a large and deep avulsion on her chin. Rankin told the officers that the couple had been arguing, and that he had punched McCoy in the mouth.

McCoy was hospitalized for four days. Doctors used nine stitches to close the wound on her chin.

B. Procedural background

In February 2006, the People filed an information charging Rankin with inflicting corporal injury on a cohabitant ( 273.5) (count 1) and assault with force likely to produce great bodily injury ( 245, subd. (a)(1)) (count 2). With respect to count 1, the People alleged that Rankin personally inflicted great bodily injury upon the victim, within the meaning of section 12022.7, subdivision (a). In addition, the People alleged that Rankin had suffered a prior strike conviction ( 667, subds. (b)-(i), 668, 1170.12).

On March 22, 2006, Rankin pled guilty to inflicting corporal injury on a cohabitant ( 273.5) (count 1) and admitted that he had personally inflicted great bodily injury on the victim, within the meaning of section 12022.7, subdivision (a). The court granted the People's motion to dismiss the remaining charges, and referred the matter to the probation department for a presentence investigation and report. The court also requested that the probation department refer the case to their mentally ill offender unit for evaluation.

In April 2006, the probation officer filed the probation report. In May 2006, Rankin filed a forensic psychological evaluation.

In June 2006, the trial court held a sentencing hearing. The trial court found that Rankin was presumptively ineligible for probation pursuant to section 1203, subdivision (e)(3), and that this case was not an "unusual case." The court denied probation and sentenced Rankin to a total term of five years in prison, comprised of the lower term of two years on count one, and a consecutive three-year term for the great bodily jury enhancement.

Rankin timely appeals. In his notice of appeal, Rankin states that he is challenging "the sentence or other matters occurring after the plea."

III.

DISCUSSION

A. Rankin forfeited his claim that the trial court erred in determining that he was

presumptively ineligible for probation

While this appeal was pending, we requested that the parties submit supplemental briefs addressing whether the trial court erred, under Lewis, supra, 120 Cal.App.4th 837, in determining that Rankin was presumptively ineligible for probation pursuant to section 1203, subdivision (e)(3), without finding that he had willfullyinflicted great bodily injury. We requested that the parties also address the proper disposition of this case if there were such error.

In his supplemental brief, Rankin contends that the trial court erred under Lewis, but acknowledges that he did not raise this objection in the trial court. Rankin requests that this court exercise its discretion under People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 (Williams), to consider his claim, notwithstanding his failure to object in the trial court.

In their supplemental brief, the People acknowledge that, "Since the section 12022.7 enhancement requires only a general criminal intent, section 1203, subdivision (e)(3) has been interpreted [in Lewis, supra, 120 Cal.App.4th at pp. 852-854] to require a finding that the defendant harbored a specific intent to cause great bodily injury." The People also acknowledge that the trial court in this case failed to make "any express finding of willfulness." However, the People maintain that no such finding was necessary in this case because the record indicates that the parties understood that Rankin was presumptively ineligible for probation.

In People v. Scott (1994) 9 Cal.4th 331, 353 (Scott), the Supreme court held that a party who does not object to a trial court's "failure to properly make or articulate its discretionary sentencing choices," forfeits the right to raise the claim on appeal. The Scott court reasoned: "The requirement [of a objection in the trial court] encourages the careful exercise of discretion and decreases the risk of error. In the event ambiguities, errors, or omissions appear in the court's reasoning, the parties can seek an immediate clarification or change." (Id. at p. 351.)

At the time Rankin entered his guilty plea, the trial court informed him, "This is a case where it's presumed that you are going to be sentenced to state prison because of the injury that was resulting [from] . . . this activity. The court needs to find it to be an unusual case to give you probation." Thus, Rankin was on notice, prior to the sentencing hearing, that the trial court believed Rankin was presumptively ineligible for probation. Rankin could have objected at the time of sentencing to the trial court's finding that he was presumptively ineligible for probation, on the ground that the court had not found that Rankin had willfully inflicted great bodily injury.

If Rankin had raised this objection at the sentencing hearing, the trial court would have had the opportunity to make the requisite finding of intent to support its determination that Rankin was presumptively ineligible for probation pursuant to section 1203, subdivision (e)(3). By failing to object at sentencing, Rankin forfeited any claim that the trial court erred in finding him presumptively ineligible for probation pursuant to section 1203, subdivision (e)(3), without finding that he had willfully inflicted great bodily injury. (See Scott, supra, 9 Cal.4th at p. 353.)

We decline to exercise our discretion under Williams to consider Rankin's claim despite his failure to object in the trial court. Among our reasons for declining to exercise our discretion is that it appears the trial court's failure to make a specific finding that Rankin willfully inflicted great bodily injury in this case was harmless. In pleading guilty, Rankin signed a form in which he admitted to having "willfully and unlawfully inflict[ed] corporal injury." (Italics added.) During the plea colloquy, Rankin admitted that he had personally inflicted great bodily injury. Based on Rankin's admissions and the circumstances of the underlying offense, it is virtually certain that the trial court would have found that Rankin acted with the requisite intent, if Rankin had raised an objection at the time of sentencing.

B. The trial court did not abuse its discretion in determining that this case

was not an unusual one, or in denying probation

Rankin contends that the trial court erred in determining that this case was not an unusual case in which justice would best be served by granting probation, pursuant to section 1203, subdivision (e)(3). Rankin further claims that the trial court erred in denying probation and sentencing him to prison.

1. Factual and procedural background

At the plea hearing, the following colloquy occurred:

"[The court]: You have agreed that you are going to plead guilty to the charge in count one. You are going to admit the great bodily injury that occurred.

"[Rankin]: Yes.

"[The court]: And then everything else is going to be dismissed against you. [] This is a case, then, where the D.A. is going to argue what they think is fair for a sentence, but ultimately, I will make the decision on what your sentence will be. [] Is that your understanding of what is happening?

"[Rankin]: Yes. Uh-huh, yeah."

"The court: And, Mr. [defense counsel], is there any other part of the plea-bargain that I am not aware of?

"[Defense counsel]: I don't believe so. There were discussions in [c]hambers, and . . . it was pretty clear that it was the Mentally Ill Offender Program that's going to be referred to, if appropriate, and I don't think the District Attorney is going to object to that."

Later during the same hearing, the court stated:

"This is a case where it's presumed that you are going to be sentenced to state prison because of the injury that was resulting [from] . . . this activity. The Court needs to find it to be an unusual case to give you probation. And given your health situation and your medical situation, it's likely an unusual case, it is a situation where I can give you probation. [] Do you understand that?"

Rankin responded in the affirmative.

In the probation report, the probation officer stated that Rankin refused to sign an acknowledgement of the general conditions of probation, "explaining that he would wait to do so until he knew whether Ms. McCoy would apologize to him for what he is now going through." The probation report also noted that in 1991, Rankin was granted probation after having suffered a conviction for arson ( 451, subd. (b)). The court revoked probation on three separate occasions due to Rankin's failure to take psychiatric medications or to attend related counseling sessions.

With respect to substance abuse, Rankin admitted that he had "used everything except heroin." As to his ability to abstain from controlled substances, Rankin acknowledged that he "might not be able to stop" if ordered to do so. Rankin denied that he had any history of alcohol abuse.

The probation report also states:

"The Mentally Ill Offender Unit of the San Diego County Probation Department met with Mr. Rankin on 4/11/06 and evaluated him for suitability for the specialty services of the unit. Unit supervisor Anna Guzman's case contact comments indicate that the defendant 'bragged about his mental health background, blamed the victim for his circumstances and showed no interest in treatment or therapy.' She [assessed] that [Rankin] presented as 'self-entitled and not a viable candidate for MIO as he displays a difficult attitude at this custodial juncture. There is nothing to indicate that it will change once released from custody.'"

The probation report concludes: "Central to the Probation Officer's belief that Mr. Rankin is not suitable for probation is his documented aversion to psychiatric maintenance and formal supervision in general. Because he has been deemed unsuitable for the Probation Department's Mentally Ill Offender Unit for supervision, the specialized interventions necessary to maintain [Rankin] in the community, and his obvious disinclination to comply, make probation supervision untenable."

The defense filed a forensic psychological evaluation performed by Dr. Gregg Michel. In his evaluation, Dr. Michel stated that in May 2006, he conducted a clinical interview and mental status examination of Rankin. Dr. Michel also reviewed numerous records describing Rankin's criminal and psychological history. In particular, Dr. Michel stated that a December 2005 competency evaluation noted a "history of schizophrenia. . . ."

However, Dr. Michel concluded that Rankin "does not warrant a diagnosis of schizophrenia or bipolar disorder, but his use of drugs and even alcohol has led to a situation in which in the past he has exhibited cognitive and emotional symptoms secondary to drug-induced difficulties." Dr. Michel also concluded that Rankin's substance abuse exacerbated emotional responses that were related to a borderline personality disorder, and that Rankin "exhibited problems" consistent with an antisocial personality disorder. Dr. Michel noted that Rankin "exhibits inappropriate intense anger and difficulty controlling his anger especially if he is intoxicated or under the influence of drugs." Further, Rankin has "limited insight," due to his "low intellectual abilities."

Dr. Michel stated that Rankin was "defensive with regard to [the] use of alcohol and drugs." Further, with respect to controlled substances, Rankin "does not believe he require[s] treatment." However, Dr. Michel opined that, "[I]f [Rankin] is not appropriately treated when free in the community he is likely to become involved in similar situations as what occurred at the time of the instant offense."

Dr. Michel noted that Rankin had never received "an appropriate treatment program," namely one that included inpatient drug rehabilitation treatment. Dr. Michel believed that Rankin "could benefit from referral to an inpatient substance rehabilitation program of several months duration accepting dual-diagnosed patients." Dr. Michel stated, "With such treatment, [Rankin] would have the opportunity to exhibit a more positive pattern of adjustment in the future and break a cycle of legal recidivism."

At the sentencing hearing, defense counsel requested that the court find "good cause" and "extraordinary circumstances" and grant Rankin probation. Defense counsel argued that Dr. Michel's psychological evaluation demonstrated that Rankin would not be a danger to other people if he received proper treatment, and noted that Rankin had not previously received such treatment.

The prosecutor, who was appearing for the prosecutor who had been present at the plea hearing, stated: "Miss Santana's notes and brief discussion with me today were that she would submit it to the court, and she was not fundamentally opposed to [Rankin] receiving mental health treatment."

The court stated that the information that had previously been presented to the court had indicated that Rankin suffered from paranoid schizophrenia, a disease that could be controlled with proper medication and the ancillary services of the mentally ill offender unit. However, the court noted that it was now clear that the mentally ill offender unit did not believe it "could be of any use with him," and that Rankin's problems were "character disorders." The court stated that it was not aware of "any viable treatment program" for such disorders. The court also noted that Rankin suffered from additional symptoms that were attributable to his abuse of drugs.

Defense counsel reiterated his argument that Rankin required a structured inpatient environment. The probation officer stated that he did not believe Rankin was suitable for probation, noting that "the odds of getting the exact right treatment for him seem long, and the odds of him complying seem longer."

The court ruled:

"This is a case in which the defendant is presumptively ineligible for a grant of probation under Penal Code section 1203, [subdivision] (e)(3) because of the personal infliction of great bodily injury. In order to consider this defendant for probation, the court would need to find this to be an unusual case. The situation I think would be an unusual case if it had been as originally presented, that it was a case involving a psychiatric history of an [axis] one diagnosis for which medical treatment has been proven to be effective when adhered to.

"In this case, there are a couple of things that are problematic. First, this defendant I think has announced in no uncertain terms that he is basically disinterested in psychiatric treatment. I think that he feels that he has superior knowledge on those subjects to the people who would be likely to evaluate him and assist him.

"Moreover, it is clear that the basic problems are drug related and character related. I don't believe that other than an effort at drug treatment there is any really reliable treatment that would be appropriate for this case, so this is hard to say this conduct is due to mental illness and that mental illness would be reasonably be thought to be treated as a condition of probation. In fact, this is a person with an anger problem who doesn't control his anger well when intoxicated, and he did inflict personal injury.

"I don't find this to be an unusual case within the sentencing rules. Probation is denied."

2. Governing law

Section 1203 provides in relevant part:

"(e) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons:

[] . . . []

(3) Any person who willfully inflicted great bodily injury or torture in the perpetration of the crime of which he or she has been convicted."

California Rules of Court, rule 4.413(c) specifies various criteria that a trial court is to consider in determining whether a presumption against probation has been overcome in a particular case. That rule provides in relevant part:

"The following facts may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate:

[] . . . []

"(2) Facts limiting defendant's culpability

A fact or circumstance not amounting to a defense, but reducing the defendant's culpability for the offense, including:

[] . . . []

"(B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation . . . ."

"The standard for reviewing a trial court's finding that a case may or may not be unusual is abuse of discretion. [Citations.]" (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) "The trial court enjoys broad discretion in determining whether a defendant is suitable for probation. [Citations.] . . . . To establish abuse, the defendant must show that, under the circumstances, the denial of probation was arbitrary or capricious. [Citations.] A decision denying probation will be reversed only on a showing of abuse of discretion. [Citation.]" (People v. Lai (2006) 138 Cal.App.4th 1227, 1256-1257.)

3. The trial court did not abuse its discretion

The record indicates that the trial court carefully considered Rankin's psychological history and his history of substance abuse in determining whether his case was an unusual one, sufficient to overcome the presumption against probation codified in section 1203, subdivision (e)(3). The record also clearly indicates that Rankin has a serious substance abuse problem and that he is in denial regarding that problem. The trial court could have reasonably concluded that under these circumstances, there was not a "high likelihood" (Cal. Rules of Court, rule 4.413(c)(2)(B)), that a grant of probation with a substance abuse treatment program would be effective.

We reject Rankin's argument that there was a lack of "substantial evidence" supporting the trial court's conclusion that there were not effective treatment programs for his substance abuse problems and character-related mental disorders, and that this lack of evidence required the trial court to find that this was an unusual case and grant probation. The trial court had before it sufficient evidence regarding the nature of Rankin's psychological disorders to enable the court to fashion an appropriate sentence. Included in this evidence were statements from the probation officer that Rankin was not suitable for probation, in view of Rankin's disinclination to participate in treatment or therapy.

We also reject Rankin's argument that Dr. Michel's statement that Rankin "could benefit" from an inpatient substance abuse treatment program that would offer Rankin the "opportunity" to break the cycle of recidivism, demonstrates that the trial court erred in determining that this was not an unusual case for which probation was appropriate. Dr. Michel's equivocal comments did not compel a determination that Rankin suffered from a mental disorder that could be effectively treated, and thus, that this case was an unusual one for which justice would best be served by a grant of probation.

We conclude that the trial court did not abuse its discretion in finding that this was not an unusual case and in denying probation.

C. The trial court did not fail to honor a representation the court made at

Rankin's plea hearing

Rankin claims that the trial court failed to honor a representation the court made to him at his plea hearing. Specifically, Rankin contends that, "the trial court represented to [him] that the court would find this an unusual case and grant [him] probation if the court found that [he] had a diagnosis of a mental health disorder and [he] could be effectively treated." Rankin argues that he should be allowed to withdraw his guilty plea in light of the court's failure to honor this representation.

1. Rankin may pursue this claim without having obtained a certificate

of probable cause

The People claim that Rankin may not pursue this claim on appeal because he failed to obtain a certificate of probable cause. Rankin contends that he may pursue this claim because it is based on a ground that arose after entry of his guilty plea that does not affect the validity of the plea.

"If a defendant enters a guilty or no contest plea and fails to obtain a certificate of probable cause, the scope of an appeal is generally limited to challenging a motion to suppress evidence and raising grounds arising after entry of the plea that do not affect its validity. (Cal. Rules of Court, rule 8.304(b).)" (People v. Brown (2007) 147 Cal.App.4th 1213, 1220 (Brown).) A certificate of probable cause is not required where "the grounds for [a defendant's] appeal arise from the trial court's failure to give effect to the terms of [the defendant's] plea." (Ibid.)

The gist of Rankin's claim is that after he pled guilty, the trial court failed to honor its representation concerning the sentence the court would impose, and that Rankin must therefore be allowed to withdraw his plea. We conclude that this claim does not require a certificate of probable cause because it is based on a "[g]round[] that arose after entry of the plea and do[es] not affect the plea's validity." (Cal. Rules of Court, rule 8.304(b)(4)(B); see, e.g., People v. Kaanehe (1977) 19 Cal.3d 1, 8, 15 [holding no certificate of probable cause required to raise claim that prosecutor breached plea bargain and concluding that defendant must be allowed to withdraw plea]; Brown, supra, 147 Cal.App.4th at p. 1224 [holding defendant could pursue claim that trial court imposed a punishment more severe than that specified in her plea agreement without obtaining certificate of probable cause, and concluding that defendant must be allowed to withdraw plea].)

2. The trial court did not fail to honor a representation made to Rankin

at his plea hearing

Rankin's claim fails for two reasons. First, contrary to Rankin's assertion, the trial court did not tell him at the plea hearing that the court would grant probation if it were to find Rankin had a treatable mental illness. The court stated,"[G]iven your health situation and your medical situation, it's likely an unusual case, it is a situation where I can give you probation." (Italics added.) Thus, the court merely stated that it could grant probation if it were to find that Rankin had a treatable mental illness. In any event, even assuming the court did promise Rankin that it would grant probation under those circumstances, for the reasons stated in part III.B., ante, the court did not abuse its discretion in determining that Rankin did not have a treatable mental illness for which a grant of probation would be appropriate.

We conclude that the trial court did not fail to honor a representation it made to Rankin at his plea hearing. Rankin is therefore not entitled to withdraw his plea on this ground.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

NARES, Acting P. J.

IRION, J.

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^[1] Unless otherwise specified, all subsequent statutory references are to the Penal Code.

^[2] In light of Rankin's plea of guilty, there was no trial in this case. We therefore rely on the probation report's recitation of the facts of the underlying offense.