P. v. Lorms
Filed 3/21/07 P. v. Lorms CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE,
Plaintiff and Respondent, A114124
v. (SolanoCounty
Super. Ct. Nos.
PAUL EDWARD LORMS, FCR227492/FCR228048)
Defendant and Appellant.
_______________________________________/
Paul Edward Lorms appeals from judgments entered after he pleaded no contest in two different cases to possessing methamphetamine. (Health & Saf. Code, 11377.) He contends (1) his waiver of Proposition 36 probation was not knowing and intelligent, (2) he received ineffective assistance of counsel, (3) the court erred because it did not halt the proceedings and order a competency hearing, and (4) the court erred when imposing a restitution fine. We agree the restitution fine was imposed incorrectly and will order the appropriate modification. In all other respects, we will affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On October 5, 2005, police officers stopped appellant because he was riding a bicycle at night without a headlight. The officers searched appellant and found 1.1 grams of the methamphetamine.
On October 7, 2005, a complaint was filed charging appellant with, inter alia, possessing methamphetamine. The case was resolved through negotiation. Appellant pleaded no contest to the methamphetamine count. In exchange, other allegations were dismissed. On October 17, 2005, the court suspended the imposition of sentence and placed appellant on Proposition 36 probation.
On October 29, 2005, police responded to a call complaining that appellant was living in a storage unit. When the officers arrived, they noted appellant appeared to be under the influence of methamphetamine. The officers searched the storage unit and found a bag containing 1.3 grams of methamphetamine.
On November 1, 2005, a second complaint was filed charging appellant with, inter alia, possessing methamphetamine. That case too was resolved through negotiation. Appellant pleaded no contest to the methamphetamine count. In exchange, other allegations were dropped. On November 14, 2005, pursuant to the negotiated agreement, the court suspended the imposition of sentence and placed appellant on Proposition 36 probation.
The court ordered appellant to attend a Proposition 36 orientation program and to appear in court for a progress report on December 2, 2005.
At the hearing on December 2, 2005, the probation department informed the court that appellant had tested positive for drugs. Appellant admitted the violation, and the court informed him that it would be considered the first of three drug-related violations that are permitted under Proposition 36. The court ordered appellant to appear in court for another progress report on December 9, 2005.
Appellant failed to appear in court on December 9, 2005 as required. The court revoked his probation and ordered his arrest.
Appellant was remanded into custody on December 16, 2005.
The court became concerned about appellants competency. On January 27, 2006, the court suspended the proceedings and ordered appellant to undergo a mental evaluation pursuant to Penal Code[1]section 1368.
A competency hearing was conducted on February 17, 2006. After receiving reports from two doctors who evaluated appellant and found him to be competent, the court reinstated the proceedings. Appellant then admitted he had violated his probation in two respects: by failing to appear in court on December 9, 2005 (a non drug-related violation), and by possessing illegal drug paraphernalia (his second drug-related violation.) In light of the violations, the court ordered appellant to undergo an in-custody evaluation to assess his amenability for the Proposition 36 program.
On March 10, 2006, appellant told the court he wished to opt out of the Proposition 36 program and to return to the sentencing court. The court granted appellants request.
On May 8, 2006, the court sentenced appellant to concurrent terms of two years in each of his cases, with 254 days of custody credit.
II. DISCUSSION
A. Was Appellants Decision to Withdraw From Proposition 36 Probation
Knowing and Intelligent?
Appellant contends the judgments in both cases must be reversed because his decision to opt out of Proposition 36 probation was not knowing and intelligent. According to appellant, he would not have opted out of the program if he had known that he might be sentenced to up to 3 years 8 months in prison.
Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, was adopted by the voters on November 7, 2000. (People v. Murillo (2002) 102 Cal.App.4th 1414, 1417.) The act is codified in sections 1210, 1210.1 and 3063.1, and in section 11999.4 et seq. of the Health and Safety Code. (Ibid.)
The plain language of the statute defines those who are eligible for treatment under the program. Section 1210.1[2]states, in relevant part: (a) Notwithstanding any other provision of law, and except as provided in subdivision (b), any person convicted of a nonviolent drug possession offense shall receive probation. As a condition of probation the court shall require participation in and completion of an appropriate drug treatment program. The court may also impose, as a condition of probation, participation in vocational training, family counseling, literacy training and/or community service. A court may not impose incarceration as an additional condition of probation.
Section 1210.1, subdivision (b) describes those who are not eligible for treatment under subdivision (a). One type of person excluded is Any defendant who refuses drug treatment as a condition of probation. ( 1210.1, subd. (b)(4).)
The record here shows appellant decided not to participate in Proposition 36 probation at the court hearing on March 10, 2006. Appellant acknowledges his actions at that hearing were tantamount to a refusal to undergo Proposition 36 treatment within the meaning of section 1210.1, subdivision (b)(4).
Two days before the March 10, 2006 hearing, appellant met with his Proposition 36 assessor Carlissa James. The results of that meeting are described in a memorandum prepared by appellants probation officer, Trevor Hughes: Assessor Carlissa James met with the defendant on 3-8-06. At that meeting, Mr. Lorms reported that he wanted to opt out of 1210 PC. He conveyed that he no longer wants to be in jail. Ms. James believes that Mr. Lorms would benefit from the support of his family outside of jail. [] It is recommended that the defendant be terminated from 1210 PC services and formal probation be reinstated.
That same day, appellant met with Hughes. A memorandum Hughes sent to James describes the meeting: I met with Mr. Lorms on March 08, 2006. He appeared to be lucid and anxious to discuss his case. He was disappointed over the lengthy process in which it has taken to finalize his case and disgruntled over how he has been treated [throughout] this process. He reported that due to his health problems (degenerative spinal and joint disease) he has been in a lot of pain because his current living conditions are not conducive to his injuries. He appeared to be ready for closure around this matter. [] Mr. Lorms informed me that he has chosen to opt out of prop. 36 with consideration given for time currently served. He reported that he has been incarcerated since December 14, 2005. He reported that his ultimate goal is to return to Ohio to reside with his mother in a clean and sober living environment. It would appear that with his health conditions relocating to a new environment where he has the support of family would be in his best interest.
At the March 10, 2006 court hearing, defense counsel told the court appellant had changed his mind: Mr. Lorms wanted me to relate to the Court and to Ms. James, which I did, that he actually had a change of mind after denying it and after I explained that the Court didnt have to grant him his wish of time served and let him go to Ohio, that other things could happen to him including state prison sentence I believe his maximum is three years, eight months -- and that other options also exist which include California Rehabilitation Center, or possibly, if the Court were willing, to give him a year [in] jail with probation terminated and sentenced, that those are some of the many options that are available. Or the Court could send him to a live-in program if thats what he wanted to do. (Italics added.)
After a brief recess to allow defense counsel to confer with appellant, defense counsel again addressed the court: Mr. Lorms and I have had a chance to meet, and I think at this point, given what his desires are -- and that is to suffer as little further incarceration as possible -- he would like to return to the sentencing court . . . And the side [benefit?], then, for that is that he would get assigned a different attorney and that will help him a lot -- he and I are like oil and water -- and hopefully that theyll probably make an argument for time served or maybe the Court would consider terminating probation at the end of some fixed jail sentence. I think hell better be able to manage himself in custody with some idea when this is all going to end.
The court then discussed the issue with appellant directly:
Q. [The court:] Okay. Mr. Lorms, are you indicating that you wish to opt out of this program and not proceed any further under terms of probation under Proposition 36 which is the drug court? Is that what youre indicating?
A. [Appellant:] Yes.
Q. [The court:] Okay. Do you understand, then, that there wont be any possibility of dismissal of this charge at the successful end of the program or completion? Do you understand that?
A. [Appellant:] I didnt, but I do now.
Q. [The court:] Okay. Do you have any other questions of your attorney?
A. [Appellant:] No. Laurie Ms. Berliner answered pretty much everything.
Q. [The court:] Okay. All right. I think Mr. Lorms is now voluntarily opting out of this program which is tantamount to a refusal to treat, making him ineligible for Prop. 36, and so I will send him back to . . . Judge Ely, for further proceedings.
These passages show that appellant opted out of the Proposition 36 program after being told that he faced a potential sentence of three years, eight months in prison. We conclude appellants decision to opt out was knowing and intelligent.
None of the arguments appellant makes convince us there was error on this ground.
First, appellant contends his decision was not knowing and intelligent because the court did not tell him that one consequence of his decision was that the maximum sentence could be imposed. While the court did not relay that information to appellant at the March 10, 2006 hearing, defense counsel did. Counsels admonition was sufficient.
Next, appellant contends his decision was not knowing and intelligent because his probation officer told him that he would recommend reinstatement of probation. Even if we were to assume Hughes told appellant he would make such a recommendation, it was just that, a recommendation. Subsequently, the court and defense counsel told appellant that he faced many sentencing options, and included in those available to a sentencing court were a commitment to the California Rehabilitation Center or up to three years, eight months in prison.
Next, appellant relies on a portion of Ms. Jamess March 8, 2006 memorandum wherein she stated appellant had decided to opt out of the Proposition 36 program with consideration given for time currently served. According to counsel on appeal, appellant apparently misunderstood the significance of this recommendation that it was only a recommendation that was not dispositive. Appellants argument on this point is premised on a view of the record that is most favorable to him. In fact, we are obligated to view the record in the light that is most favorable to the judgment being challenged. (People v. Johnson (1980) 26 Cal.3d 557, 576.) Furthermore, whatever confusion appellant may have had based on Jamess memorandum would have been clarified by the comments of the court and defense counsel at the March 10, 2006 hearing.
Finally, appellant relies on a passage contained in one of the reports that was prepared to evaluate his mental status. In that report, the doctor who examined appellant said he was lacking some information about the potential penalties he will face. However, the report in question was prepared on February 16, 2006. After that date, and specifically, at the March 10, 2006 hearing, the court and defense counsel explained to appellant the potential penalties he faced.
We conclude appellant had the knowledge he needed to make an informed and intelligent decision to opt out of the Proposition 36 program.
B. Ineffective Assistance of Counsel
Appellant contends his conviction must be reversed because he received ineffective assistance of counsel.
A defendant who contends he received ineffective assistance has the burden of proving that (1) trial counsels performance was deficient in that it fell below an objective standard of reasonableness when measured by prevailing professional norms, and (2) there is a reasonable probability that, but for counsels errors, the result of the proceeding would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 215-218.) An appellant who alleges ineffective assistance on direct appeal bears an especially heavy burden of proof: [if] the record on appeal 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, the claim on appeal must be rejected. [Citations.] (People v. Wilson (1992) 3 Cal.4th 926, 936, quoting People v. Pope (1979) 23 Cal.3d 412, 426; see also People v. Mendoza Tello (1997) 15 Cal.4th 264, 267.)
Here, appellant contends trial counsel was ineffective because she encouraged [him] to believe that opting out of Proposition 36 probation, as opposed to continuing in amenability assessment, might have some benefit in helping [him] achieve [his] desire of less incarceration and [to] return to Ohio, when in fact there was no reasonable chance of such a benefit. Appellant bases his argument on defense counsels statements at the March 10, 2006 hearing where she stated: Mr. Lorms and I have had a chance to meet, and I think at this point, given what his desires are -- and that is to suffer as little further incarceration as possible he would like to return to the sentencing court . . . he would get assigned a different attorney and that will help him a lot -- he and I are like oil and water -- and hopefully that theyll probably make an argument for time served or maybe the Court would consider terminating probation at the end of some fixed jail sentence. I think hell better be able to manage himself in custody with some idea when this is all going to end. (Italics added.)
We reject appellants argument for two reasons. First it is based on a false premise. Defense counsels comment, read in context, does not indicate counsel told appellant that opting out of the Proposition 36 program would result in a lighter sentence. Indeed, counsels comment is not directed at the Proposition 36 issue. Rather, counsel stated that appellants goal of obtaining as light a sentence as possible would best be served by appointing new counsel for the sentencing hearing who then might be able to argue for leniency more persuasively.
Second, even if we were to assume that appellant interpreted defense counsels comments correctly, he has not shown prejudice; i.e., he has not shown that if he had been advised correctly, he would not have opted out of the Proposition 36 program. There is ample evidence that indicates that is not the case. Appellant told his probation officer on March 8, 2006, that he was disappointed over the lengthy process in which it has taken to finalize his case and that he was ready for closure around this matter. At the March 10, 2006 hearing, defense counsel said appellant would do better if he had some idea when this is all going to end. Given appellants desire for closure, it is not at all apparent that appellant would have remained in the Proposition 36 program if counsel had advised him differently. A defendant must prove prejudice that is a demonstrable reality, not simply speculation. (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) Appellant has failed to carry that burden here.
We conclude appellant has not proved ineffective assistance.
C. Competency
After doubt was raised about appellants competency, the court suspended the proceedings and ordered appellant to undergo a mental evaluation pursuant to section 1368. Two doctors examined appellant and prepared reports for the court. Both concluded that appellant was competent. The court reinstated the proceedings.
Subsequently, after appellant withdrew from the Proposition 36 program, appellants probation officer prepared a probation report that touched briefly on the issue of appellants competence. At one point, the report stated, Assessor Carlissa James met with the defendant on 3-8-06. In that meeting, the defendant stated that he [chose] to opt out of 1210 PC. Later that day, the defendant made three phone calls to the undersigned stating that he did not understand what had happened in the meetings with Ms. James, and that he was confused. His choices were again explained to him, and he again decided that opting out of 1210 PC was his best option. (Italics added.)
At another point, the report stated, Since initial contact with the defendant, his mental faculties have been questionable. Two psychologists met with him, and found him capable of undergoing criminal proceedings. When speaking with the defendant he stated that he did not understand what has been happening for the past three months in court. The matter has been discussed with him by the undersigned, his Public Defender, the assessor from Health and Human Services and the two previously mentioned doctors. The defendant is still confused. It is unclear if he understood what was required of him to complete the 1210 PC program. When asked if he wished a further grant of probation and treatment for his alcohol issues, the defendant stated that he would rather serve out time in jail for both cases so that he can return to Ohio.
Appellant now contends that in light of the comments made in the probation report, and particularly the language we have italicized, the court was obligated to suspend the proceedings again and to evaluate his competency a second time.
The law on competency is well established. A defendant is presumed competent unless it is proved otherwise by a preponderance of the evidence. As a matter of due process, the state may not try or convict a mentally incompetent defendant. (People v. Ramos (2004) 34 Cal.4th 494, 507, internal citations omitted.) If a defendant presents substantial evidence of his lack of competence and is unable to assist counsel in the conduct of a defense in a rational manner during the legal proceedings, the court must stop the proceedings and order a hearing on the competence issue. [Citations.] (Ibid.) The courts decision whether to grant a competency hearing is reviewed under an abuse of discretion standard. [Citation.] (Ibid.)
When a competency hearing has already been held and defendant has been found competent to stand trial . . . a trial court need not suspend proceedings to conduct a second competency hearing unless it is presented with a substantial change of circumstances or with new evidence casting a serious doubt on the validity of that finding. (People v. Lawley (2002) 27 Cal.4th 102, 136, quoting People v. Kelly (1992) 1 Cal.4th 495, 542.) A trial court may appropriately take into account its own observations in determining whether the defendants mental state has changed significantly. (Ibid.)
The evidence appellant cites does not convince us that the court was required to suspend the proceedings and to hold yet another competency hearing. That evidence does show that appellant was confused about the technical requirements for completing Proposition 36 treatment. Since appellant apparently does not have legal training and the law is complex, that is not surprising. However, the issue is not whether appellant could understand difficult legal issues, but whether he could consult with his lawyer with a reasonable degree of rational understanding -- and whether he [had] a rational as well as a factual understanding of the proceedings against him. (People v. Jablonksi (2006) 37 Cal.4th 774, 807-808, internal punctuation omitted.)
Moreover, at the March 10, 2006 hearing, before the court passed appellants case to allow defense counsel and appellant to consult privately, the court made the following comment when appellant asked the court What was the recommendation [from Mr. Hughes]? The court stated, Right now I dont have a recommendation. What I have from Dr. Purviance[3]is a finding of chronic alcoholism, possibly a mental health situation with bipolarism; that when you are drinking, you are certainly not competent, but when you are detoxed, as you are right now, youre competent. The evidence appellant cites does not convince us appellant was incompetent under the standard we must apply.
We conclude the court did not abuse its discretion when it declined to hold a second competency hearing.
D. Restitution Fines
The charges in the first case against appellant were resolved on October 17, 2005. The court suspended the imposition of sentence and placed appellant on Proposition 36 probation. As is relevant here, the court imposed a $200 restitution fine pursuant to section 1202.4, subdivision (b).[4]
The charges in the second case against appellant were resolved on November 14, 2005. The court suspended the imposition of sentence and placed appellant on Proposition 36 probation. Again, the court imposed a $200 restitution fine pursuant to section 1202.4, subdivision (b).
After appellant withdrew from the Proposition 36 program, the court conducted a sentencing hearing in both cases on May 8, 2006. The court sentenced him to concurrent terms of two years in prison. In addition, in each case, the court imposed a $400 restitution fine under section 1204.4, subdivision (b), and a $400 parole revocation restitution fine under section 1202.45.[5]
Appellant now contends the court could not validly impose a second restitution fine under section 1202.4 in each case because the $200 restitution fines that were imposed originally remained in effect. In addition, appellant argues the associated $400 parole revocation fines under section 1202.45 must be reduced to the same amount as the section 1202.4 restitution fine, i.e., $200. The People concede the errors and we agree. As another court stated, There is no statutory authority justifying the second restitution fine because . . . the first restitution fine remained in force despite the revocation of probation. (People v. Chambers (1998) 65 Cal.App.4th 819, 823.) The appropriate remedy is to strike the restitution fines, and to reduce the section 1202.45 parole revocation fines to the same amount as the originally imposed section 1202.4, subdivision (b) fine. (People v. Arata (2004) 118 Cal.App.4th 195, 203.)
The final issue we must address has been raised by the People. They contend that as part of any modification, we must order the court to impose a $200 probation revocation fine in each case under section 1202.44.[6] The People concede they did not raise this issue in the court below, but they argue the omission can be raised at any time.
The general rule is that only claims properly raised and preserved by the parties in the court below can be raised on appeal. (People v. Scott (1994) 9 Cal.4th 331, 351.) A narrow exception to this rule exists for unauthorized sentences i.e., sentences that could not validly be imposed under any circumstance. (Id. at p. 354.)
In People v. Tillman (2000) 22 Cal.4th 300, our Supreme Court applied these principles to the situation where the trial court failed to impose a restitution fine under section 1202.4. Because a restitution fine under section 1204.4, subdivision (b) is not mandatory, (it can be waived by a statement on the record of extraordinary and compelling reasons) the courts failure to impose the fine was not an unauthorized sentence. (See People v. Smith (2001) 24 Cal.4th 849, 853.) The court ruled that under those circumstances, the Peoples failure to object in the trial court barred them from raising the issue on appeal. (People v. Tillman, supra, 22 Cal.4th at p. 303.)
The court reached a different conclusion in People v. Smith, supra, 24 Cal.4th 849. There, the trial court imposed a $5,000 restitution fine under section 1202.4 and a $200 parole revocation fine under section 1202.45. (Smith, supra,at p. 852.) The Smith court ruled the People could challenge the amount of the parole revocation fine on appeal even though they had not objected in the court below because under section 1202.45, the court had no choice but to impose a parole revocation fine that was equal to the restitution fine. Since the courts action was unauthorized the People could challenge it on appeal. (Smith, supra,at p. 853.)
Here, we are dealing with the former situation. A probation revocation fine under section 1202.44 is not mandatory. As in Tillman, the fine can be waived if the court states on the record, compelling reasons for doing so. Since the courts failure to impose the fine was not unauthorized, the People cannot raise the issue on appeal because they did not raise it in the court below.
III. DISPOSITION
In FCR227492 and in FCR228048, the trial court is ordered to prepare and to forward to the Department of Corrections amended abstracts of judgment that omit the $400 restitution fines under section 1202.4, subdivision (b) that were imposed on May 8, 2006. The $200 restitution fines that were imposed on October 17, 2005 and November 14, 2005 remain in effect. In addition, the $400 parole revocation fines imposed under section 1202.45 each must be reduced to $200.
In all other respects, the judgments are affirmed.
_________________________
Jones, P.J.
We concur:
________________________
Simons, J.
________________________
Gemello, J.
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[1] Unless otherwise indicated, all further section references will be to the Penal Code.
[2]Section 1210.1 has recently been amended. We will cite to the version of the statute that was in effect when appellant committed his crimes. (See Stats. 2001, ch. 721, 3.)
[3] Dr. Purviance prepared a section 1368 report.
[4] Section 1202.4, subdivision (b) states, In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.
[5] Section 1202.45, states in part, In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine shall be suspended unless the persons parole is revoked.
[6] Section 1202.44 states in part, In every case in which a person is convicted of a crime and a conditional sentence or a sentence that includes a period of probation is imposed, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional probation revocation restitution fine shall become effective upon the revocation of probation or of a conditional sentence, and shall not be waived or reduced by the court, absent compelling and extraordinary reasons stated on record.
