P. v. Ruble

Filed 3/24/09 P. v. Ruble 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Yolo)

----

A jury convicted defendant Gary Wayne Ruble of inflicting corporal injury on a cohabitant (Pen. Code,  273.5, subd. (a).)[1] The trial court sustained two prior prison term allegations, sentenced defendant to an aggregate term of seven years in state prison, and imposed a consecutive 183-day jail term for violating his misdemeanor probation in another case. On defendants motion, the court recalled the sentence, reimposed the seven-year state prison term, and ordered that the 183-day jail term be served concurrently.

On appeal,[2] defendant contends the trial court did not properly state its reasons for imposing the upper term when it resentenced him; trial counsels failure to object constituted ineffective assistance of counsel; and imposition of the upper term violated his rights to due process and jury trial. We shall affirm.

Background

The facts of defendants crime are not relevant to his appeal, and are summarized as follows: on the evening of March 6, 2007, West Sacramento Police Officer Richard Winters responded to a domestic violence call. When he arrived at the scene, he saw defendant and his girlfriend, Katherine V.,[3] standing on the sidewalk.

Katherine was visibly upset and crying; she had bruising on her face, a laceration on her upper lip and a cigarette burn on her right forearm. Once she was in the patrol unit, Katherine told the officer that defendant had punched her many times in the face.

Katherine was treated for her injuries at the emergency room the following day.

Procedural History

Defendant was first sentenced at a July 6, 2007, sentencing hearing. The court noted this was defendants third domestic violence conviction, with the first two charged as felonies before being reduced to misdemeanors. The court also recognized defendant had had earlier opportunities . . . to get his life straightened around, as his two prior prison sentences were 16-month low terms. Appreciating defendants argument that an upper term would be piling on, the court was mindful of at least two parole revocations, an increasing pattern of seriousness in his criminal record, and defendants problems with drugs and alcohol. The court imposed a seven-year term--the upper term of five years for the corporal injury on a cohabitant conviction, and two consecutive one-year terms for the prior prison term enhancements.

Based on defendants conviction for corporal injury to a cohabitant, the court also terminated defendants misdemeanor probation in an unrelated case and imposed a consecutive 183-day jail term, which effectively cancelled defendants pretrial custody credits. Defendant subsequently moved to recall the sentence, asking the court to impose a concurrent sentence for the probation violation and to apply the credits from that case to his seven-year term in the instant case.

The trial court granted the motion and resentenced defendant on July 24, 2007, imposing the same sentence as before, except that the 183-day term for the misdemeanor probation violation was to run concurrently. As justification for imposing the upper term again, the court stated it was relying on the reasons set forth in the probation report filed July 5th, 2007.

Discussion

I

When imposing sentence, the trial court shall set forth on the record the reasons for imposing the term selected. ( 1170, subd. (b).) The trial court is required to state the reasons for its choice of the upper term on the record to permit meaningful appellate review, and may not simply incorporate the probation report by reference. (People v. Fernandez (1990) 226 Cal.App.3d 669, 678-679; Cal. Rules of Court, rule 4.420(e).)

Defendant contends that the upper-term sentence imposed at resentencing is invalid because the court referred to the probation report rather than stating its own reasons for imposing an upper term. However, defendant never objected to the courts failure to state its own reasons for reimposing the upper term at the resentencing hearing. As defendant concedes, this forfeits his claim on appeal. (People v. Gonzalez (2003) 31 Cal.4th 745, 755; People v. Scott (1994) 9 Cal.4th 331, 354-355.)

II

Defendant contends we should reach the merits because his counsels failure to object constituted ineffective assistance of counsel. We disagree.

To establish ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674].) We do not need to determine if counsels performance was deficient because we conclude any error did not prejudice defendant.

The court had previously imposed an upper term for the corporal injury conviction and stated valid reasons for imposing the sentence. The only change the trial court made to defendants sentence at the second hearing was to order defendants 183-day term for the probation violation to run concurrently, rather than consecutively, to the principal term.

Defendant contends a statement of reasons for imposing the upper term at the second sentencing hearing would have exposed deficiencies in the sentence. He finds evidence for this position from two alleged mistakes at the first sentencing hearing: the courts dual use of prior prison terms as enhancements and justification for imposing the upper term, and the trial courts error in ordering a consecutive term for the probation violation.

At the first sentencing hearing, the court imposed an upper term based on defendants extensive and increasingly serious criminal record and his unsatisfactory performance on parole. The court also mentioned defendants two prior prison terms, stating there have been other opportunities presented to [defendant] to get his life straightened around, namely, the two prior prison terms were the low terms, 16 months.

A fact constituting an element of the crime or the basis of an imposed enhancement may not be used to impose an upper term sentence. (Pen. Code,  1170, subd. (b); Cal. Rules of Court, rule 4.420(d).) It is not clear that the court was using defendants prior prison terms as an aggravating factor justifying an upper term. At the initial sentencing hearing, defendant asked for a suspended sentence. He argued that he had a drinking problem, and that he had never been placed in an appropriate program to address it. The courts reference to defendants prior prison terms did not emphasize that defendant had not learned his lesson from his time in prison. Rather than simply declaring the prior prison terms aggravating factors, the court instead relied on the fact that defendants prior prison terms were low-term sentences, to place defendants request for leniency in context. Although defendant may not have been given the opportunity to seek treatment previously, the court concluded, relying on the low-term sentences that had previously been imposed, that defendant had been given breaks by the criminal justice system.

Even if we were to consider this to be an improper dual use of defendants prior prison terms as enhancements and aggravating factors (see Pen. Code,  1170; Cal. Rules of Court, rule 4.420(d)), the original upper-term sentence was still valid. In its initial sentencing, the trial court followed the probation reports recommendation for defendants sentence on his current conviction. The report stated that defendants prior prison terms could not be used as aggravating circumstances. The primary reasons for imposing the upper term--defendants extensive criminal record and parole violations--are amply supported by the record and do not raise a dual use problem. (See People v. Jerome (1984) 160 Cal.App.3d 1087, 1098-1099 [parole status separate from prior conviction or prison term]; People v. Hurley (1983) 144 Cal.App.3d 706, 709 [fact of prior conviction separate from fact of prior prison term enhancement].) The dual use error, if any, was thus harmless. (People v. Cruz (1995) 38 Cal.App.4th 427, 433.)

The second sentencing hearing took place on July 24, 2007, a little more than two weeks after the first hearing on July 6, 2007. The only change the court made to defendants sentence at the second hearing was that it imposed a concurrent, rather than a consecutive, 183-day jail term for the probation violation. The court was not pleased with this change; it noted that, in effect, the concurrent sentence accorded defendant a free pass with respect to his probation violation. The court sentenced defendant in this manner only because it believed it was compelled to do so. Even if defendant had objected to the courts failure to state its reasons for imposing the upper term and had pointed out the potential dual use problem regarding the prior prison terms, we are convinced beyond a reasonable doubt that the court would have imposed the same valid sentence. We conclude defendant was not prejudiced by counsels failure to object to the upper term imposed at the second sentencing hearing.

III

Defendant also contends the trial court relied on aggravating factors not found by a jury to impose the upper term in violation of Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham).) We disagree.

In Cunningham, the United States Supreme Court held that California's procedure for selecting the upper term violated a defendant's constitutional right to jury trial because it gave the court, not the jury, the authority to find the facts that expose a defendant to an upper-term sentence. (Cunningham, supra, 549 U.S. at p. 274.) However, an upper-term sentence based on at least one aggravating circumstance that complies with Cunningham renders a defendant eligible for the upper term. (People v. Black (2007) 41 Cal.4th 799, 812 (Black II).) An aggravating circumstance comports with Cunningham if it is based on the defendant's criminal history. (Id. at p. 818.)

Defendant concedes we are bound to follow Black II, and raises the issue only to preserve it for federal review. In imposing the upper term, the trial court relied in part on defendants extensive criminal history and two prior parole revocations. Applying Black II, we conclude defendants upper-term sentence did not violate Cunningham.

Disposition

The judgment is affirmed.

DAVIS , J.*

We concur:

SCOTLAND , P. J.

BLEASE , J.

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[1] Hereafter, undesignated section references are to the Penal Code.

[2] Defendant abandoned his appeal from the original conviction and sentence. Defendants appeal is from the trial courts judgment subsequent to the recall of the sentence.  

[3] We will use the victims first name only to protect her privacy.

* Retired Associate Justice of the Court of Appeal, third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.