Filed 4/18/17 P. v. Smith CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO


THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL JUDE SMITH,
Defendant and Appellant.

A147308

(San Mateo County
Super. Ct. No. SC080614A)


Defendant Michael Jude Smith pled no contest to one count of infliction of corporal injury resulting in a traumatic condition (Pen. Code, § 273.5, subd. (a) ), which arose from an inebriated, violent attack on his girlfriend. Thereafter he was placed on three years’ probation, which was subsequently revoked. He now appeals the resulting judgment imposing an upper prison term of four years for his offense, raising two issues. First, Smith contends the trial court erred prejudicially by failing to order a probation report before revoking his probation and imposing sentence. He also challenges the trial court’s selection of the upper four-year prison term. We reject both arguments and affirm the judgment.
BACKGROUND
On April 11, 2014, Smith was charged by information with multiple counts arising from a March 17, 2014 incident of alleged domestic violence perpetrated against his girlfriend, Michelle G.: two counts of infliction of corporal injury resulting in a traumatic condition (§ 273.5, subd. (a)), one count of assault with intent to commit rape (§ 220, subd. (a)), and one count of false imprisonment (§ 236).
According to testimony at the preliminary hearing, Smith went to his girlfriend’s house at 5:30 in the evening on St. Patrick’s Day with the smell of alcohol on his breath and acting inebriated. After they spent some time together, he became upset and began slapping her in the face repeatedly with an open hand. He kicked her to the ground, and began kicking her repeatedly and pulling her hair while she was on the ground. She tried to get away, and was begging him to stop and to leave but he wouldn’t. They somehow ended up on her bed and he then “tried to get sexual” with her, but when she refused his advances he got on top of her and began ripping off all her clothes. She managed to push him off, grab some clothes and run out the back door to a nearby convenience store where she hoped they might discuss things calmly in the safety of a public setting. Smith followed her there where they talked for over an hour; he apologized and said he was going to stop drinking and it would never happen again. She eventually left without him to return home to be alone, but Smith followed her again and asked her to let him in, which she did, hoping they could continue to talk. They continued talking and eventually started to get intimate, but when she went to bed Smith consumed more alcohol and became violent again, this time “a lot worse than the first time.” He began hitting her all over her body with a closed fist 15 to 20 times, while she was crying and screaming and trying to get away. Her whole head was in pain from the beating, “my head, my jaw, my ear, my whole face,” her ear canal was bleeding, her mouth was bleeding, she got a black eye and bruises, and she nearly lost consciousness. She couldn’t recall how long it went on, but “it seemed like forever,” until eventually she managed to escape out her back door and call police.
On June 17, 2014, pursuant to a negotiated plea agreement, Smith pled no contest to one count of infliction of corporal injury resulting in a traumatic condition (§ 273.5, subd. (a)), the remaining counts were dismissed, and allegations concerning prior convictions, overt acts and other special allegations were stricken. Smith waived a referral to the probation department and requested immediate sentencing. The court suspended imposition of sentence and placed him on three years’ supervised probation, subject to various terms and conditions including, among others, serving one year in county jail, abstaining from the use of alcohol and controlled substances, and completing 104 hours of domestic violence counseling within 12 months. The court also issued a criminal domestic violence protective order barring him from all contact with Michelle G., and imposing a 100-yard stay-away order. (§ 273.5, subd. (j)).
A little more than a year into his probationary period, Smith’s probation officer filed a sworn affidavit recommending revocation of Smith’s probation, citing multiple violations of the terms of his probation. Among them were several incidents involving prohibited contact with his victim and several involving the use of alcohol. Smith also allegedly failed to complete his domestic violence counseling, and failed to stay in contact with his probation officer. He was arrested and taken into custody.
The probation revocation hearing took place on December 18, 2015, before the Hon. Leland Davis III, who had not presided over the June 2014 pre-trial conference where Smith’s plea had been accepted and probation had been granted. At the outset of the hearing, defense counsel alluded to an in-chambers discussion and the trial court indicated it wanted to give the parties a chance to place anything on the record they wished. Smith was prepared to enter an admission of violating the restraining order, and the court took judicial notice of the fact he was convicted of two counts in another case that corresponded to the allegation he had violated the order on January 1, 2015. The court also noted it had read and considered a letter Smith wrote to the court which is not in the record.
Smith’s probation officer then testified about Smith’s failure to complete his domestic violence prevention program, his failure to maintain contact and two incidents involving the use of alcohol. According to his probation officer, Smith got kicked out of his domestic violence program for missing too many classes, attending only 20. And from the start of probation, his probation officer had difficulty getting in touch with him on a weekly basis, “[w]e struggled back and forth to get him to come to appointments or return phone calls”; eventually in mid-June 2015 Smith fell completely out of touch and his probation officer could not locate him despite repeated phone calls to relatives, until Smith’s arrest a month-and-a-half later. His probation officer alluded to a police report that Smith had been intoxicated in public on August 24, and testified Smith admitted consuming alcohol twice while on probation. And although Smith always told his probation officer he was complying with the domestic violence restraining order, Smith ultimately “pled to two charges” of violating the order.
At the hearing’s conclusion the court revoked probation. It then inquired whether either side wanted to be heard with respect to sentencing, whereupon the defense asked the court to “maintain the mid-term offer of three years,” whereas the prosecution requested four years. The court briefly inquired about a probation report, and in the ensuing colloquy (which is somewhat unclear) was advised by the prosecution of a waiver (“It was a top bottom waive, Your Honor”). The court then denied further probation and sentenced Smith to the upper term of four years. It stated that its reason for doing so was “pursuant to Rule of Court 4.421(a)(1), crime involved great violence, great bodily harm, threat of great bodily harm. [¶] Additionally, 4.421(b)(1), Defendant has engaged in violent conduct and indicates a serious danger to society; and (b)(2), the Defendant’s prior convictions as an adult are numerous.”
This timely appeal followed.
DISCUSSION
I.
The Probation Report
Smith argues the trial court had a mandatory duty to order a current probation report at the time of the probation revocation hearing, because without one it “would have no informed and reasonably objective way in which to decide if probation should be reinstated or a prison term imposed.” He relies principally on California Rule of Court 4.411(c) which states: “The court must order a supplemental probation officer’s report in preparation for sentencing proceedings that occur a significant period of time after the original report was prepared,” and People v. Dobbins (2005) 127 Cal.App.4th 176 (Dobbins), which held that an eight-month interval sufficed to require preparation of an updated probation report before sentencing. (See id. at pp. 180–181.) The People also assert Smith was entitled to an amended probation report, but contend the record shows one was prepared and that, in any event, any error in failing to order one was harmless.
It is unclear from the record whether a probation report was in fact prepared. We need not sort this out, though. Assuming none was, and also assuming but not deciding one was legally required, we agree that any error here was harmless, as was also true in Dobbins. (See Dobbins, supra, 127 Cal.App.4th at p. 183.)
It is not reasonably probable Smith would have been granted probation had a report been prepared, nor given a different prison term. The probation officer recommended revoking probation in his sworn petition. And, as was true in Dobbins, the judge here was “intimately acquainted with the facts underlying his violation of probation” (Dobbins, supra, 127 Cal.App.4th at p. 183), because the probation officer actually testified at the hearing about Smith’s many probation violations. Had Smith believed additional details about the violations were relevant, he could have elicited them from his probation officer but chose not to do so, presumably because there was nothing further of particular benefit to elicit. Moreover, Smith had proved himself a poor candidate for reinstatement of probation: it had been a struggle from the beginning of Smith’s probation for his probation officer to try to maintain contact with him. The trial court also was acquainted with Smith’s prior criminal record, although it does not appear in the appellate record, noting that Smith’s “prior convictions as an adult are numerous.” And, in the context of issuing a ten-year no-contact order, the court observed that it “does not believe that Mr. Smith yet understands the wrongness of his actions, and the Court has seen nothing that would suggest that he’s close to understanding.”
The only specific information Smith contends was never properly considered due to the absence of a probation report concerns his possible alcohol abuse issues, which he argues might have played a mitigating role at sentencing. In particular, Smith contends that “[c]ommunity-based treatment based on formal supervision might be the best opportunity for change and avoiding recidivism,” and that “[a] second chance at such probation was a reasonable alternative to prison but never received proper consideration by the trial court.” But Smith did have an opportunity for a probation officer to explore potential substance abuse issues and, if appropriate, recommend conditions of probation designed to alleviate them. Instead, though, Smith waived a referral to the probation department when he entered his plea, which presumably reflects his counsel’s considered judgment that, contrary to what Smith now maintains, alcohol treatment was not a viable option or his “best opportunity for change and avoiding recidivism.” And then, when the trial court inquired about a probation report later on at the probation revocation hearing, and invited argument from the parties on sentencing, again Smith’s counsel didn’t say a word about potential alcohol abuse issues or treatment.
At bottom, we agree with our colleagues from the Fourth District who put it this way: “Who better than defendant would know whether a supplemental [probation] report . . . would disclose a basis for reducing the term of imprisonment . . . ? One might infer from the failure to request a supplemental report or to object to the court’s proceeding without one that defendant knows the report will not benefit him. From this one could infer not only that the error is harmless but also that defendant knowingly waived his right to a supplemental probation report . . . . A defendant should not be allowed to stand silent when the court proceeds without a supplemental probation report, gamble that a trial court will impose a lesser term of imprisonment and then urge reversal for the failure to obtain the report without being required to make some showing that he was prejudiced thereby.” (People v. Begnaud (1991) 235 Cal.App.3d 1548, 1556, fn. 7, italics added.) Precisely. Having had two opportunities to speak up and alert the court that he suffered from alcohol-related issues that he believed could bear on sentencing, and having passed on them both, Smith hasn’t shown that a different result was more probable had a probation report actually been prepared.
II.
Imposition of the Upper Term Was Not an Abuse of Discretion.
This brings us, next, to Smith’s argument the trial court abused its discretion in sentencing him to the upper four-year term. The argument is somewhat broad-ranging, consisting of many subsidiary claims of sentencing error. The parties disagree as to whether these issues have been forfeited due to defense counsel’s failure to raise any of them below (see People v. Scott (1994) 9 Cal.4th 331, 356), but we do not address the forfeiture question because Smith’s contentions fail on the merits.
A trial court’s sentencing decision rests within its broad discretion. (See People v. Sandoval (2007) 41 Cal.4th 825, 847; see also § 1170, subd. (b) [“When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court”].) “ ‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ ” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977–978.) We cannot substitute our judgment for that of the trial court, nor reverse the trial court’s discretionary sentencing decision merely because reasonable people might disagree. (Id. at p. 978.)
Broadly speaking, Smith contends that “[t]he combined failure to order a supplemental [probation] report, along with the [trial court’s] rote recitation of aggravating circumstances without any reference to the facts of the offense, point to the inescapable conclusion that appellant was arbitrarily given an upper prison term.” He asserts there is “no factual basis” for the decision. Elaborating in his reply brief, Smith contends “nothing helped the sentencing judge get a grasp of the circumstances of the original offense and appellant’s subsequent failure to comply fully with his probation terms”, overlooking: (1) the 38-page preliminary hearing transcript, which quite decidedly (and in detail) addressed the circumstances of Smith’s crime, and (2) live testimony from Smith’s probation officer concerning his probation violations.
With regard to the facts of the offense, Smith nonetheless protests the sentencing judge “had not presided at the preliminary hearing and did not express that he had reviewed that transcript.” However, this misunderstands principles governing appellate review. We cannot presume the trial court ignored something in the record even though he did not personally preside over earlier proceedings in the case; we must presume the opposite. (See People v. Connolly (1951) 103 Cal.App.2d 245, 248 [appellate court will not presume that trial court judge who denied probation was unfamiliar with the record although another judge presided at trial]; accord, People v. Mancha (1963) 213 Cal.App.2d 590, 593; Evid. Code, § 664 [“It is presumed that official duty has been regularly performed”].)
We also do not agree with Smith’s contention the trial court improperly failed to “refer to the facts of the offense” when explaining its reasons for imposing the upper term. As Smith himself acknowledges at page 13 of his opening brief, citing People v. Sandoval (2007) 41 Cal.4th 825, 847, a trial court’s statement of reasons for imposing a particular term (see § 1170, subds. (b), (c)) “ ‘no longer must “include a concise statement of the ultimate facts which the trial court deemed to constitute circumstances in aggravation or mitigation.” ’ ” Sandoval was quite clear on this point: although a trial court is required to state the reasons for its sentencing choice, it is “not . . . required to cite ‘facts’ that support its decision or to weigh aggravating and mitigating circumstances.” (Sandoval, at pp. 846–847.)
Smith also contends that the reason for the upper term was possibly because the trial court admonished him to “be quiet” during the hearing, or because of his “lackluster” compliance with the terms of his probation. That argument is sheer speculation, has no support in this record, and is defied by the reasons the trial court did give for imposing the upper term. The judgment is presumptively correct, and we will not speculate or presume the court erred. (See People v. Connolly, supra, 103 Cal.App.2d at p. 248.)
Smith also argues that “alcoholism appeared as an obvious and important thread” yet was “not factored into the sentencing choice.” This point is forfeited because Smith raises it improperly for the first time in his reply brief, giving the People no chance to respond. (See People v. Tully (2012) 54 Cal.4th 952, 1075 [“It is axiomatic that arguments made for the first time in a reply brief will not be entertained because of the unfairness to the other party”].) In addition, we would reject this argument on the merits. The record has only scant information about Smith’s alcohol use; we know only that he drank to excess on the day he attacked his girlfriend and then drank at least twice while on probation, and she had seen him drunk before. We cannot say the trial court failed to consider this evidence; presumably, it did so but evidently concluded that circumstance was outweighed by the aggravating factors the court did cite. Here, again, Sandoval bears repeating: the trial court is “not . . . required . . . to weigh aggravating and mitigating circumstances” expressly on the record. (Sandoval, supra, 41 Cal.App.4th at pp. 846–847.)
Last, we come to Smith’s contention that “[n]othing pointed to [his] crime being aggravated or ‘distinctly worse than ordinary,’ ” apparently referring to the court’s findings of great violence and bodily harm, and the danger Smith posed to society. We needn’t analyze the sufficiency of the evidence to support the court’s findings on these points, though, because Smith hasn’t even bothered to discuss the evidence much less analyze it. Given Smith’s conclusory treatment of the issue, we could deem the point forfeited. In any event, having reviewed the preliminary hearing transcript we are satisfied the court’s findings have support in this record. In addition, “a single valid factor in aggravation is sufficient to justify an upper term” (People v. Forster (1994) 29 Cal.App.4th 1746, 1759), and Smith has not challenged the court’s finding that his “prior convictions as an adult are numerous,” which is another valid factor in aggravation. (See Cal. Rules of Court, rule 4.421(b)(2).) In short, the upper term was justified on this record.
DISPOSITION
The judgment is affirmed.
 




STEWART, J.



We concur.




RICHMAN, Acting P.J.




MILLER, J.






















People v. Smith (A147308)