Filed 9/10/18 P. v. Gaines CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Appellant David Eugene Gaines was sentenced to the upper term of four years for felony stalking (Pen Code, § 646.9)[1] and consecutive terms of one year for resisting arrest (§ 148) and six months for simple assault and battery (§ 240). The court also terminated probation from Gaines’s previous case and sentenced Gaines to serve an additional consecutive term of one year, for an aggregate term of six years six months. Gaines asserts that trial counsel rendered ineffective assistance in failing to object to the imposition of consecutive terms. We affirm.

I. BACKGROUND

A. Case No. FCR304379

On December 13, 2013, the Solano County District Attorney filed a felony complaint charging Gaines with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)). On December 19, 2013, pursuant to a negotiated plea, Gaines pled no contest to the charge and admitted one of the “prison-prior” enhancements. On the same day, the trial court suspended imposition of sentence and placed Gaines on three years of formal probation.

On June 13, 2014, while on probation, Gaines tested positive for marijuana. No probation violation was alleged at the time, but Gaines was advised that any further positive drug tests or failure to participate in treatment in the future would result in a violation of probation.

On January 14, 2015, Gaines admitted to his probation officer that he had relapsed and used methamphetamine and marijuana approximately 10 times since December 2014. Gaines submitted a drug test the same day and tested positive for methamphetamine and marijuana. Gaines was directed to attend three AA/NA meetings per week and to provide proof to his probation officer. On April 3, 2015, Gaines admitted a probation violation, and the court amended the sentence to reduce Gaines’s offense to a misdemeanor pursuant to section 1170.18, subdivision (b) and converted Gaines’s probation from formal to summary probation.

B. Case No. FCR318505

On December 18, 2015, a felony complaint filed in Solano County charged Gaines with false imprisonment by violence (§ 236, count 1), misdemeanor battery (§ 243, subd. (e)(1), count 2), and misdemeanor grand theft (§ 487, subd. (c), count 3) of victim A.V. (V.). Gaines continued to contact V. after these incidents, which led the court to issue a criminal protective order on January 4, 2016.

C. Case No. FCR319409

On April 19, 2016, the Solano County District Attorney filed a consolidated information, charging Gaines with felony stalking in violation of a restraining order (§ 646.9, subd. (b), count 1), misdemeanor prowling (§ 647, subd. (h), count 2), misdemeanor resisting a peace officer (§ 148, subd. (a)(1), count 3), misdemeanor violation of a restraining order (§ 273.6, subd. (a), count 4), misdemeanor vandalism (§ 594, subd. (b)(2)(A), count 5), misdemeanor battery (§ 243, subd. (e)(1), count 6) and misdemeanor grand theft (§ 487, subd. (c), count 7).[2]

Jury trial began on June 2, 2016 and on June 9, 2016, the jury found Gaines guilty of counts 1, 3, and 4 (felony stalking and the misdemeanors of resisting arrest and violating a restraining order), and a lesser included offense in count 6 of simple assault. The jury returned not guilty verdicts for counts 2, 5, and 7 (prowling, vandalism, and grand theft).

D. Statement of Facts

V. and Gaines had been in a dating relationship for 18 months when V. ended the relationship on November 29, 2015. After the break up, Gaines continuously called V., as well as showing up at her home and her place of work, which compelled her to apply for a restraining order on December 14, 2015.

On December 16, 2015, the date of the first incident, V. drove her friend C.A. to Gaines’s home in Fairfield to serve the restraining order on Gaines. V. parked her car three houses away from Gaines’s home and the friend left the car to serve Gaines. When the friend was walking back towards the car after leaving the restraining order in Gaines’s mailbox, Gaines showed up next to V.’s car and forced his way in. Gaines banged on the car door, saying, “Open the motherfucking door.” V. pulled out her phone to call 911 when Gaines grabbed it from her. V. immediately stopped the car, leaving it in the middle of the street with the doors open, and got out of the car to run away. Gaines followed her out, grabbed her by the collar, shook her, and hit her body against the vehicle. Gaines then grabbed her again. He yelled at V., “Get your ass in the house.” After V. agreed to go into the house with him, Gaines walked away toward the house, and V. was able to get back in her car and drive away to wait for the police. V. never got her phone back from Gaines and her designer sunglasses were damaged.

Gaines continued to contact V. by Facebook and telephone notwithstanding the restraining order. On January 28, 2016, at approximately 1:30 a.m., V. heard someone trying to open the front door of her apartment. Upon hearing this, she went to her living room to make sure the sliding glass door was closed. A few seconds later, Gaines started banging on the glass door from the fenced backyard with what V. thought was a gun in his hand, while yelling at her, “Open the motherfucking door.” Scared for her life, V. grabbed her keys, left her apartment, and got into her car. V. was backing out of her parking space when Gaines jumped onto the hood of her car. V. started driving in an attempt to get him off the car. Gaines made his way to the side of the car, grabbed the mirror, tried to open the driver’s door, and punched the window. V. swerved the car and started speeding, running red lights, and honking her horn in order to attract the attention of the police. Gaines eventually fell off the car, and after calling 911 to report what had happened, V. went to the police station to file a report. Gaines was located by the police and taken to the hospital for treatment of “road rash” injuries he had sustained in falling off V.’s car.

After he was released from the hospital, Gaines called V. and yelled at her about what had happened. V. hung up and called 911. Officer Bryan Hamilton responded and was dispatched to V.’s home the same morning. After listening to the voicemail messages left by Gaines on V.’s phone, Officer Hamilton went to Gaines’s home. After speaking with Gaines, Officer Hamilton recognized his voice from the voicemails, and decided to arrest him. Gaines failed to comply promptly with Officer Hamilton’s commands and requests. After being handcuffed, Gaines refused to get into the patrol car, although Officer Hamilton directed him to do so nine times; once Gaines got in, Officer Hamilton had to direct him 13 times to put his feet in the car before Gaines finally complied. Gaines cursed at officers and continued to be uncooperative until his family members told him to listen to Officer Hamilton.

Even after his arrest, Gaines continued to call V. from jail multiple times in violation of the restraining order.

E. Sentencing

On July 5, 2016, defense counsel filed a sentencing memorandum urging the court to grant Gaines probation. Counsel emphasized that Gaines suffered from drug addiction, and asserted he was “committed to working towards achieving sobriety and deserves an opportunity at probation in order to address his addiction.” The memorandum asked the court to find that unusual circumstances warranted a grant of probation and to order Gaines to participate in a one-year residential drug and alcohol treatment program.

In its presentence report, the probation department stated that Gaines had been subject to formal probation, summary probation, and parole in the past, but that “[d]espite the many opportunities given to him to reform, he continues to reoffend and victimize the women in his life.” It found that all five of the circumstances in aggravation listed in California Rules of Court,^[3] rule 4.421(b) applied, and found no applicable circumstances in mitigation. As to whether the court should impose concurrent or consecutive sentences, the report asserted both that the crimes and their objectives were predominantly independent of each other (rule 4.421(a)(1)) and that they were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. (Rule 4.425(a)(3).) The report also found that based on the Level of Service/Case Management Inventory (LS/CMI) assessment tool,[4] Gaines “poses a very high risk to reoffend.” The report noted that the current offenses reflected Gaines’ sixth criminal matter and third felony conviction and that Gaines had been less than forthcoming about his actions and had decided to ignore both the restraining order and the victim’s pleas to leave him alone. It expressed the concern that Gaines’s behavior “will escalate to physical harm if he were given the opportunity to be released,” and took the view that the victim’s life “should not be risked to give the defendant his fifth attempt at recovery.” Accordingly, the probation report recommended that Gaines be sentenced on the felony stalking count to the upper term of four years, and that “the remaining misdemeanor counts and the defendant’s summary probation grants be run consecutively as they are independent of each other.”

On July 27, 2016, defense counsel submitted a supplemental statement in mitigation responding to the probation department’s presentence report. The statement reiterated Gaines’s request for probation, but stated that should the court impose a prison term, Gaines requested the court to impose the low term of two years because he committed the offenses under the influence of methamphetamine.

At sentencing on August 25, 2016, the court heard argument from counsel in addition to the probation report and sentencing memoranda it had previously reviewed. In response to counsel’s argument that Gaines should be given probation and placed in residential treatment because he had committed the offenses while under the influence of methamphetamine and alcohol, the court observed that the misdemeanor convictions of assault and violating a court order were “almost a separate track of criminality.” The court then heard a statement from V., who expressed the view that Gaines “doesn’t really want to do anything for his life.” She expressed fear for her life and concern that Gaines might attack her again in the future. The prosecutor requested the court to impose the upper term of four years on the felony stalking conviction, and consecutive terms of one year six months on the misdemeanor resisting and assault convictions, together with an additional consecutive term for the probation violation. In response, defense counsel argued that if the court would not impose probation, “I don’t feel high term is warranted in this case.” In response to the court’s suggestion that Gaines would first serve his felony sentence in state prison, and then serve consecutive sentences in county jail on the misdemeanors, counsel responded, “I think that would be overly punitive. And, again, given Mr. Gaines[’s] criminal history, I don’t think that much punishment would be appropriate; but, again, would be overly punitive . . . .” The court disagreed, observing that counsel’s comment was “devoid of merit” and that “[t]he probation report well documents the record.”

Observing that the prosecutor’s statements were “entirely appropriate,” the trial court first noted that Gaines was statutorily ineligible for probation absent unusual circumstances, and that the probation department had not found any unusual circumstances and the trial court was aware of none. The court then stated that based on Gaines’s written statement and the probation report, “it is clear to the court that the defendant has no insight into his criminality. He has no credible, in the court’s view, remorse; no credible empathy for this victim.” In response to counsel’s request that the court award Gaines credits from his probation case, the court declined, reiterating, “This is a very serious crime. As I’ve indicated, [Gaines] has no insight into his criminality. He has no credible remorse, in the court’s view, and no credible empathy for his victim in this case or victims in the past, and there is no mitigating factor that the court can find. [¶] As [the prosecutor] has indicated, protection of society is what she’s focused on, and that is what the court is focused on as well.”

The court found that all five circumstances in aggravation listed in rule 4.421, subdivision (b), applied: (1) Gaines had engaged in violent conduct that indicated a serious danger to society, (2) his prior convictions were numerous or increasing in seriousness, (3) he had served a prior prison term, (4) he was on probation or parole at the time the crime was committed, and (5) his prior performance on probation or parole was unsatisfactory. The trial court did not find any circumstances in mitigation under rule 4.423. Therefore, it sentenced Gaines to state prison for the upper term of four years for stalking in violation of a protective order, with credits for 440 days. It sentenced him to serve consecutive terms of one year in the county jail for the misdemeanor resisting arrest and six months for the assault. The trial court stayed the imposition of a sentence for count 4 pursuant to section 654. Finally, it terminated probation in case No. FCR304379 and sentenced Gaines to serve one year in county jail, with credit for 41 days, also to be served consecutively.

II. DISCUSSION

Gaines contends that his trial counsel rendered ineffective assistance by failing to object to the imposition of consecutive terms that were not legally justified. He asserts that proper application of sentencing rules required the trial court to impose concurrent rather than consecutive terms for the misdemeanors because (1) the trial court was prohibited from using the same facts (“dual use”) to justify imposing both the upper term for the felony charge and the consecutive terms for the misdemeanors and (2) the crimes were committed with a single objective and as part of a single period of aberrant behavior.[5] We are unconvinced.

To establish ineffective assistance of counsel, a defendant has the burden of showing (1) counsel’s performance was deficient and fell below an objective standard of reasonableness and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a “reasonable probability” that a more favorable result would have been reached absent the deficient performance. (People v. Jones (2013) 217 Cal.App.4th 735, 746–747 (Jones); People v. Dennis (1998) 17 Cal.4th 468, 540–541.) A court must exercise deferential scrutiny when considering a claim of ineffective assistance because there is a “strong presumption that counsel’s acts were within the wide range of reasonable professional assistance.” (Dennis, at p. 541; People v. Walker (1993) 14 Cal.App.4th 1615, 1624.) To show prejudice based on counsel’s failure to raise a potentially dispositive objection or motion, the defendant must show it is “reasonably probable” that the objection would have succeeded at trial. (People v. Booth (2016) 3 Cal.App.5th 1284, 1305.) A reasonable probability is a “ ‘probability sufficient to undermine confidence in the outcome.’ ” (Jones, at p. 747.) A defendant is not entitled to relief on direct appeal if the record does not show why counsel failed to act in the manner defendant challenges, unless there simply could be no satisfactory explanation for counsel’s conduct or counsel was asked for an explanation and failed to provide one. (People v. Huggins (2006) 38 Cal.4th 175, 206; People v. Lizarraga (2003) 110 Cal.App.4th 689, 693.)

Gaines’s contention that he was deprived of effective assistance of counsel by his counsel’s failure to object to consecutive sentencing is readily rejected for the simple reason that his counsel did object to the court’s imposition of consecutive sentences. After reiterating her request that the court sentence Gaines to probation, defense counsel then argued in the alternative that if the court were to sentence Gaines to serve a term of imprisonment, it should not impose the upper term of four years. She argued further that if the court did sentence Gaines to a state prison term, “the misdemeanor convictions could not attach in prison.” In response, the trial court made it clear that it intended to sentence Gaines to a state prison term on the felony stalking charge, and then to consecutive terms on the misdemeanors, to be served in county jail: “THE COURT: They are consecutive. The court imposes the CDC sentence. After the CDC sentence, he comes back, and he serves his sentence on the misdemeanors.” Defense counsel objected—twice—that such a sentence would be “overly punitive,” and that in light of Gaines’s criminal history, “I don’t think that much punishment would be appropriate.” The trial court disagreed, and imposed the challenged sentence. Thus, defense counsel did object to the trial court’s imposition of consecutive sentences, and Gaines’s claim that he was deprived of effective assistance by counsel’s failure to object is without merit.

In any event, even if trial counsel’s objection arguably could have been more detailed or explicit, failure to argue for concurrent rather than consecutive sentencing is not ineffective assistance of counsel if (1) trial counsel argued generally for leniency and (2) there is no indication that an argument for concurrent sentencing would have resulted in a more lenient sentence. (Jones, supra, 217 Cal.App.4th at p. 748.) That was the square holding of Jones. There, the defendant pleaded no contest to multiple felony counts, including two counts of being a felon in possession of a firearm and of ammunition and two counts of possessing a prohibited firearm, and admitted allegations that he had a prior serious felony conviction and had served a prior felony prison term. (Id. at p. 739.) There, as here, the probation department’s report listed five circumstances in aggravation and none in mitigation. (Id. at p. 747.) “At sentencing, defense counsel argued for a grant of probation, encouraging the court to be lenient.” (Ibid.) The trial court struck the prior serious felony conviction and prior prison term findings, imposed the upper term of three years for the first felon in possession of a firearm count and a consecutive eight months term for the second such count, and imposed concurrent middle terms for the remaining five counts. (Id. at p. 739.) The court did not state the reasons for making the second term consecutive. (Id. at p. 748.) The defendant contended on appeal that because the trial court used the aggravating factors in the probation report to impose the upper term, “there were no remaining aggravating factors to use in imposing consecutive sentences,” and therefore it was reasonably probable an objection would have led to a lesser sentence. (Ibid.) The appellate court disagreed, observing that there were multiple aggravating circumstances for the trial court to consider and “plenty upon which to impose both the upper term and consecutive sentences.” (Id. at pp. 748–749.) As the court observed, “Simply put, defendant’s resume did not inspire leniency. Defense counsel’s performance did not fall below an objective standard of reasonableness for failing to argue for concurrent sentencing . . . because it is unlikely that such an argument would have convinced the court to be . . . more lenient.” (Id. at p. 749.)

Precisely the same conclusion follows here. Here, as in Jones, defense counsel “argued generally for leniency when it encouraged the trial court to grant probation.” (Jones, supra, 217 Cal.App.4th at p. 748.) And here, again as in Jones, “there is no indication in this record” that an argument for concurrent sentencing would have resulted in a more lenient sentence. (Ibid.) To the contrary, in denying Gaines’s request for additional credits stemming from his probation violation, the trial court made it clear that it viewed the primary offense as “a very serious crime,” that Gaines had “no insight into his criminality,” “no credible remorse,” and “no credible empathy for his victim in this case or victims in the past,” and that “there is no mitigating factor that the court can find.” The court also rejected counsel’s argument that imposing both prison and jail sentences would be overly punitive. It is inconceivable, in light of those repeated and emphatic remarks, that the trial court would have sentenced Gaines to concurrent rather than consecutive terms had defense counsel persisted in her objections. (See People v. Valenti (2016) 243 Cal.App.4th 1140, 1178 [counsel was not ineffective for failing to object to consecutive sentences where there was “abundant evidence that the court exercised its discretion to impose the maximum allowable sentence” and it was not reasonably probable the result would have been different if counsel had objected].)

III. DISPOSITION

The judgment is affirmed.

_________________________

Schulman, J.*

We concur:

_________________________

Streeter, Acting P.J.

_________________________

Reardon, J.