Filed 1/9/18 P. v. Gibson CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE


THE PEOPLE,
Plaintiff and Respondent,
v.
ANDREW CHARLES LEE GIBSON,
Defendant and Appellant.

A150580

(Lake County
Super. Ct. No. CR940725)


After defendant Andrew Charles Lee Gibson pleaded no contest to elder abuse (Pen. Code, § 368, subd. (b)(1)), the trial court suspended imposition of sentence and placed him on three years of formal probation on the condition he serve 240 days in the county jail. After he was released from jail, the trial court revoked probation and sentenced him to the upper term of four years. Defendant appeals from the court’s imposition of the upper term.
Forfeiture
The Attorney General claims defendant forfeited the issue by failing to object during the sentencing hearing. Failure to object to a sentencing determination, when given “a meaningful opportunity” to do so, forfeits the issue on appeal. (People v. Scott (1994) 9 Cal.4th 331, 352–356 (Scott); see People v. Stowell (2003) 31 Cal.4th 1107, 1113; People v. De Soto (1997) 54 Cal.App.4th 1, 7–8.)
A “meaningful opportunity” to object to a sentencing determination occurs when, “during the course of the sentencing hearing . . . the parties are clearly appraised of the sentence the court intends to impose and the reasons that support any discretionary choices.” (Scott, supra, 9 Cal.4th at p. 356.) “The parties are given an adequate opportunity to seek . . . clarifications or changes if, at any time during the sentencing hearing, the trial court describes the sentence it intends to impose and the reasons for the sentence, and the court thereafter considers the objections of the parties before the actual sentencing.” (People v. Gonzalez (2003) 31 Cal.4th 745, 752.)
Defendant claims he did not have sufficient notice of the intended sentence to object. The record reflects otherwise.
To begin with, the plea form, which defendant initialed, expressly stated: “I understand that a violation of any of the conditions of probation . . . may cause the court to send me to county jail or state prison for up to the ‘Aggregate Maximum Time of Imprisonment’ specified in item 1.” The specified “ ‘Aggregate Maximum time of Imprisonment’ ” in item 1 was four years. The trial court found defendant understood and agreed to the terms of his negotiated disposition.
At the outset of the sentencing hearing, the court told defendant “up front” it was not certain it wanted to follow probation’s recommendation to reinstate probation with a waiver of credits. “[N]othing in either [probation] report indicates that that’s appropriate,” said the court. On inquiry by the court, defendant offered no additional evidence, and defense counsel urged that probation’s recommended sentence was appropriate given that defendant had been homeless, making it difficult to comply with the terms and conditions of probation.
The trial court then observed that it had two probation reports before it. The original report had urged that the upper term be imposed. Nevertheless, the defendant had received probation. And although the subsequent report described defendant “as a high-violent risk of reoffending,” it recommended reinstatement. This, said the court, was “[c]ompletely irrational.”
The court then asked counsel if the matter was “submitted?” Defense counsel voiced no objection, even though it was clear the court was not going to reinstate probation and was focused on the originally recommended, upper term sentence.
The court thereafter found defendant in violation of probation and said the “[f]irst question” was whether probation should be reinstated. The court could not “imagine” why it should, given that defendant had “done nothing” and failed to adhere to a string of terms and conditions. The court pronounced the case was “clearly inappropriate for a grant of probation.”
The court then proceeded to make multiple findings in aggravation: use of a weapon; “violent conduct” indicating “a serious danger to society”; prior convictions which have escalated in seriousness; defendant was on two grants of probation when he committed the assault; and his prior performance on probation was “clearly unsatisfactory.” It made one finding in mitigation: defendant admitted wrongdoing at an early stage. “[A]ny which way,” said the court, the original probation report was “clearly correct,” and the court announced it was “imposing the upper term of four years to be served in the state prison.” Again, defense counsel said nothing.
We conclude defendant had “a meaningful opportunity” to urge the court to impose a lower term than had been originally recommended by probation, and in the absence of any objection, forfeited the issue.
No Ineffective Assistance of Counsel
To establish a claim of ineffective assistance of counsel, “the defendant must first show counsel’s performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, the defendant must show resulting prejudice. . . . When examining an ineffective assistance claim, a reviewing court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) “ ‘[T]he appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record sheds no light on why counsel acted or failed to act in the manner challenged, “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation” [citation], the contention must be rejected.’ ” (People v. Kelly (1992) 1 Cal.4th 495, 520.)
We will reverse a trial court decision on the grounds of ineffective assistance of counsel “ ‘only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his [or her] act or omission.’ ” (People v. Zapien (1993) 4 Cal.4th 929, 980, partially superseded on other grounds by Pen. Code, § 190.41.) As defendant is raising the claim of ineffective assistance of counsel on direct appeal and not by way of writ, we must reject the claim unless there simply could be no satisfactory explanation for trial counsel’s failure to act. (People v. Kelly, supra, 1 Cal.4th at p. 520.)
Here, counsel urged the trial court to follow the probation department’s recommendation to reinstate probation. Having been unsuccessful in that effort, and given the court’s unequivocally stated opinion probation had had the sentence right the first time around—when it recommended the upper term—counsel could have reasonably concluded any further objection would have been futile, particularly after the court identified five factors in aggravation and identified only one in mitigation and recounted defendant’s total failure on probation in the case at hand. While defendant asserts the factors in aggravation and mitigation were unchanged from the original sentencing hearing, defendant’s abject failure on probation underscored the factors in aggravation. Moreover, the imposition of sentence had been suspended, and it was up to the sentencing court to weigh the factors.
“Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile.” (People v. Price (1991) 1 Cal.4th 324, 387, partially superseded on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161–1165.) Given the trial court’s commentary on the record here, a decision by defense counsel to make no further objection to the sentence was within the realm of reason.
For essentially the same reasons, defendant also has not carried his burden of establishing prejudice, i.e., he has failed to “affirmatively prove” that absent his attorney’s failure, it is “reasonably likely” his sentence would have been shorter. (Strickland v. Washington (1984) 466 U.S. 668, 693, 696, partially superseded on other grounds by Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104–132, 110 Stat. 1214.) “The likelihood of a different result must be substantial.” (Harrington v. Richter (2011) 562 U.S. 86, 112.) Given the tenor of the trial court’s statements on the record, it is not reasonably likely the court would have imposed a lesser term, had defense counsel timely objected to imposition of the upper term.
DISPOSITION
The judgement is affirmed.






_________________________
Banke, J.


We concur:


_________________________
Humes, P.J.


_________________________
Dondero, J.