P. v. Dockery









Filed 3/24/17 P. v. Dockery 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

DAYVEON JIMMONE DOCKERY,

Plaintiff and Respondent.



E065310

(Super.Ct.No. FVI1501241)

OPINION


APPEAL from the Superior Court of San Bernardino County. Debra Harris, Judge. Affirmed.
David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A second amended felony complaint charged defendant and appellant Dayveon Jommone Dockery with (1) three counts of attempted murder under Penal Code[1] sections 664 and 187, subdivision (a), with several firearm enhancements (counts 1-3); (2) three counts of assault with a firearm under section 245, subdivision (a)(2), with firearm allegations (counts 4-6); (3) street terrorism under section 186.22, subdivision (a) (count 7); and two counts of possession of a firearm by a felon under section 29800, subdivision (a)(1) (counts 8-9). The complaint also alleged that defendant committed all of the crimes for the benefit of a criminal street gang, and that he had a prior strike conviction for robbery.
On May 29, 2015, defendant pled no contest to possession of a firearm by a felon. The remaining counts and allegations were dismissed. Defendant agreed that the factual basis for the plea was contained in the second amended complaint, the investigative reports and defendant’s criminal history. Defendant did not execute a waiver under People v. Harvey (1979) 25 Cal.3d 754, which would have permitted the trial court to consider dismissed counts and allegations when sentencing defendant. Defendant agreed to immediate sentencing and waived his right to a probation report.
Pursuant to the terms of the plea agreement, the court withheld pronouncement of judgment and placed defendant on probation for three years, with conditions including reporting regularly to the probation officer, following all directives of the probation officer, and keeping the probation officer informed of his place of residence. The trial court warned defendant that this was a “very, very serious” case, and advised him to stay far from trouble in the future.
Defendant reported to probation on June 3, 2015, and was directed to report to the probation office monthly. Compliance checks on defendant’s reported residence were conducted from June 24, 2015, through August 26, 2015. Defendant was never home. On August 28, 2015, defendant was placed in custody for violating a prior conviction for robbery. He violated his probation by being untruthful about his living situation. Upon being released from custody, defendant reported to the probation officer for the current case on September 9, 2015. Defendant told his probation officer, Officer Eshton Smith, that he was homeless and looking for a stable residence. Defendant told Officer Smith that his family would not let him live at the family home.
Officer Smith told defendant to report to the probation office on September 11, 2015, to get some type of housing. Defendant failed to report, and he never contacted Officer Smith in person again. Defendant did check in by kiosk on October 15, 2015, but that failed to comply with Officer Smith’s direction. Checking in by kiosk required only a scan of the probationer’s hand. Defendant could have updated his residence at the kiosk, but he did not. Defendant failed to ever report his residence, as directed. Officer Smith went to defendant’s previously reported residence to look for him; defendant was not there.
On January 29, 2016, the trial court found that defendant violated his probation, and sentenced defendant to the aggravated term of three years in prison for unlawful possession of a firearm. Defendant filed his notice of appeal the same day.
DISCUSSION
Defendant contends that the trial court erred in sentencing defendant to the upper term because the court failed to state any valid reason for its decision. The People contend that defendant “forfeited his claim because he failed to object in the trial court.”
A. DEFENDANT FORFEITED HIS CLAIM BY FAILING TO OBJECT
Citing California Supreme Court’s decision in People v. Scott (1994) 9 Cal.4th 331, the People argue that we should not consider defendant’s arguments because he forfeited them by failing to object on these grounds at the time of sentencing. We agree. In Scott, our Supreme Court held that a defendant must object at the time of sentencing to the trial court’s failure to properly make or articulate sentencing choices. (Id. at p. 353.) Defendant did not object at the sentencing hearing when the trial court sentenced him to the upper term. Because he did not object, he has forfeited the claim on appeal. (Id. at p. 356.)
Defendant does not address the forfeiture argument. He, however, states that “an appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6.)” Defendant asks that we “consider this issue in the interests of justice.”
Although we agree that defendant has forfeited this argument, we find that his claim fails because the trial court properly sentenced defendant.
B. THE COURT PROPERLY SENTENCED DEFENDANT
“‘Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in “qualitative as well as quantitative terms” [citation] . . . . We must affirm unless there is a clear showing the sentence choice was arbitrary or irrational.’” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) “[A] single factor in aggravation suffices to support an upper term.” (People v. Osband (1996) 13 Cal.4th 622, 730, distinguished on other grounds by People v. Lucero (2000) 23 Cal.4th 692.)
Circumstances in aggravation and mitigation shall be established by a preponderance of the evidence. (Cal. Rules of Court, rule 4.420(b).) Furthermore, “each aggravating factor must be supported by the evidence in the record.” (People v. Searle (1989) 213 Cal.App.3d 1091, 1096, citing People v. Arbee (1983) 143 Cal.App.3d 351, 356, and People v. Berry (1981) 117 Cal.App.3d 184, 198.)
In this case, when the trial court sentenced defendant, it erroneously stated “defendant pled guilty to a strike offense, and very dangerous activity.” Based on this, defendant contends that the court erroneously relied on the alleged strike offense as a basis to sentence defendant to the upper term.
“‘[A] trial court is presumed to have been aware of and followed the applicable law.’” (People v. Brown (2007) 147 Cal.App.4th 1213, 1229.) Moreover, if a trial court considers proper and improper sentencing factors, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. (People v. Jones (2009) 178 Cal.App.4th 853, 861.)
In this case, at the probation revocation hearing, the trial court heard the testimony of Officer Smith, who testified about how defendant violated the terms of his probation. Moreover, he testified that he recommended imposing the aggravate term.
Defense counsel mentioned no mitigating factors during sentencing. He stated that the probation violation was “very minor”—but that is not a mitigating factor relating to defendant or his underlying offense. Moreover, defendant’s failure to follow the directions of the probation officer to report regularly mirrored his contempt for the prior court’s conditions of parole; defendant was on parole from a serious and violent felony when he committed the underlying offense. In addition to defendant’s disregard for his probation conditions herein, according to his own mother defendant also cut off the GPS ankle monitor given to him by the parole officer.
One aggravating factor is sufficient to support the imposition of the upper term. (People v. Black (2007) 41 Cal.4th 799, 813; People v. Osband, supra, 13 Cal.4th at p. 728.) In this case, in the probation officer’s supplemental report dated January 29, 2016, Officer Smith listed nine “circumstances in aggravation” to be considered. In this list, the probation officer listed that (1) defendant’s prior engagement “in violent conduct that indicates a serious danger to society;” (2) defendant’s prior convictions “are numerous and/or of increasing seriousness;” (3) “defendant has served a prior term;” (4) “defendant was on a grant of parole when the crime was committed;” and (5) “defendant’s prior performance on probation was unsatisfactory.”
Therefore, based on the lack of mitigating circumstances and the aggravating factors listed on the probation officer’s supplemental report, which was prepared for and discussed at the hearing, we find it is not reasonably probable that the court would have chosen a lesser sentence had it known that defendant’s underlying conviction was not a strike offense. The trial court properly sentenced defendant to the upper term of three years in state prison.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
J.


We concur:


HOLLENHORST
Acting. P. J.


McKINSTER
J.





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[1] All statutory references are to the Penal Code unless otherwise specified.