P. v. McNevin

P. v. McNevin

Filed 6/30/08 P. v. McNevin CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, Plaintiff and Respondent, v. RODDY ALLEN McNEVIN, Defendant and Appellant.

A116762 (San Mateo County Super. Ct. No. SC061153)

I. INTRODUCTION

Appellant Roddy Allen McNevin appeals from a sentence and judgment following a plea of no contest to 11 counts of committing lewd or lascivious acts upon a child less than 14 years of age (Pen. Code,  288, subd. (a)).[1] Appellants 28-year sentence resulted from the imposition of the upper term of eight years for Count One and two years for each of the remaining eight counts, to be served consecutively. Appellant challenges the sentence, claiming: (1) the aggravated sentence imposed for Count One violated his constitutional right to a jury trial; (2) ineffective assistance of counsel for his counsels failure to object to this alleged sentencing error; and (3) ineffective assistance of counsel for counsels failure to request a continuance of the sentencing hearing to allow the court time to review written sentencing mitigation materials submitted by the defense. For the reasons set forth below, we conclude these claims lack merit and affirm the sentence.

II. FACTS AND PROCEDURAL BACKGROUND

Appellant was accused of molesting his two nieces, A. and D., between 2002 and 2005. He reportedly molested his oldest niece, A., from the ages of 12 to 14, and his youngest niece, D., from the ages of 9 to 10. Four felony counts relate to acts against the younger niece while she was either sleeping with her cousins in their bedroom or in the living room. She reported she would awake with the appellant fondling her vaginal area. The victim denied any use of force, coercion, or threats.

Eighteen felony counts relate to acts against the older niece when she was between the ages of 12 and 14. The first incident allegedly occurred in a hot tub at the appellants Stockton home. Appellant reportedly placed his hand inside the victims bathing suit and inserted his finger in her vagina. Numerous subsequent incidents reportedly occurred at appellants home in Redwood City, and typically occurred at night when the victim was an overnight guest visiting her cousins. These incidents involved digital vaginal penetration, touching and kissing the victims breast, oral copulation of the victim, or having the victim manually stimulate appellants penis. There were no reports of force, coercion, or threats.

By information filed on May 24, 2006, in the San Mateo County Superior Court, appellant was charged with 22 counts of committing a lewd or lascivious act upon a child under 14 years of age ( 288, subd. (a)). The information also alleged, with respect to Counts Five through Fourteen, that appellant engaged in substantial sexual conduct ( 288, subd. (c)(1)). Count Five carried a jurisdictional charge ( 784.7), and Count Fourteen alleged that appellant had committed the offense against multiple victims ( 667.61, subd. (c)).

On October 4, 2006, appellant pleaded no contest to Counts One through Eleven. Appellant also admitted the substantial sexual conduct in connection with Counts Five through Eleven and jurisdictional allegations in connection with Count Five. The plea agreement expressly provided that the judge would sentence appellant to an aggregate term of between 20 to 28 years. It also stated that appellant must register as a sex offender for the remainder of his life. In return for the no contest plea, the prosecutor dismissed the 11 remaining counts.

On December 12, 2006, the trial court denied probation and sentenced appellant to 28 years in state prison. Appellants sentence resulted from the imposition of the upper term of eight years for Count One and two years, to be served consecutively, for each remaining count.

Appellant timely appealed.

III. DISCUSSION

Appellant asserts his sentence is unconstitutional because: (1) he was denied the right to a jury trial as to those factors used by the trial court to impose the aggravated term for Count One; (2) he received ineffective assistance of counsel when his lawyer failed to request a continuance to allow the trial court time to review defense documents supporting an argument for imposition of the mitigated term; and (3) he received ineffective assistance of counsel when counsel failed to object to the sentence.

A.     Cunningham[2]Error

1.      Certificate of Probable Cause

Preliminarily, we must address whether appellants claim of error in imposing an aggravated sentence can be raised on appeal in the absence of a certificate of probable cause. Section 1237.5 provides that [n]o appeal shall be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere . . . except where both of the following are met: [] (a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings. [] (b) The trial court has executed and filed a certificate of probable cause for such appeal with the clerk of the court. The purpose for requiring a certificate of probable cause is to discourage and weed out frivolous or vexatious appeals challenging convictions following guilty and nolo contendere pleas. (People v. Buttram (2003) 30 Cal.4th 773, 780.)

Two types of issues may be raised on appeal following a guilty or nolo contendere plea without the need for a certificate: (1) issues relating to the validity of a search and seizure, for which an appeal is provided under section 1538.5, subdivision (m), and (2) issues regarding proceedings held subsequent to the plea for the purpose of determining the degree of the crime and the penalty to be imposed. (People v. Buttram, supra, 30 Cal.4th at p. 780; see also People v. Panizzon (1996) 13 Cal.4th 68, 74-75.) Appellant attempts to avoid the certificate under the second exception.

In a recent case, the California Supreme Court has held that similar issues to those raised in this appeal relate to post-plea, sentencing matters, and as such, fall within the second exception noted above to the certificate requirements of section 1237.5.[3] Under similar facts to the instant case, in French, supra, 43 Cal.4th 36, the defendant had entered a plea of no contest to six counts of lewd and lascivious conduct on several minors ( 288, subd. (a)) with the understanding that he would receive no more than an aggregated term of 16 years in state prison. In return for the plea, numerous other counts and sentencing enhancements were dismissed by the prosecution. (Id. at p. 42.)

As to the appealability of defendants so-called Cunningham claims challenging the legality of the sentence actually imposed, the high court held: Defendants claim is that the upper term was not authorized because the prosecution failed to establish an aggravating circumstance at the sentencing hearing in the manner required by the Sixth Amendment. Such a claim does not affect the validity of the plea agreement [thereby requiring a certificate of probable cause]. (French, supra, 43 Cal.4th at p. 45.)

In his supplemental brief, the Attorney General concedes this preliminary point, and withdraws the argument that appellants appeal is defective because of the absence of a certificate of probable cause from the trial court. Therefore, we decide appellants so-called Cunningham claims on their merits, including appellants claims relating to ineffective assistance of counsel at sentencing.

B. Improper Sentencing Factors Relied On In Imposing Aggravated Term

As noted earlier, the trial court imposed a 28-year aggregate state prison sentence by selecting the upper term of eight years for Count One and two years, to be served consecutively, for each remaining count. In imposing the upper term, the court relied on three facts to justify the aggravated term, including that the appellant took advantage of a position of trust, the victims were particularly vulnerable and the defendant showed limited remorse. These factors were also cited in the probation report as facts warranting imposition of the upper term.

Appellant contends the trial court erred under Cunningham, supra, when it imposed the upper term for Count One. In Cunningham, the high court concluded that Californias determinate sentencing law violates the Sixth Amendment because it allocates to judges sole authority to find facts permitting the imposition of an upper term sentence. (Cunningham, supra, 127 S.Ct. at p. 870.) The court explained: [T]he Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.] (Id. at p. 860.) Except for a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. [Citation.] (Id. at p. 868.) Appellant contends the trial court violated this rule, and thus his Sixth Amendment rights, by relying on one or all of the three facts quoted above in imposing the upper term for Count One.

Respondent does not dispute that the factors relied on by the trial judge fell within those discussed in Cunningham, which require a jury finding before they can be used to aggravate a sentence. However, respondent argues that any error in this regard was harmless.

Subsequent to Cunningham, our Supreme Court held in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval) that the denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18. To conduct this analysis we determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jurys verdict would have authorized the upper term sentence . . . . [S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury. [Citation.] By the same reasoning, if a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless. (Sandoval, supra, 41 Cal.4th at pp. 838-839, italics omitted.)

We conclude beyond a reasonable doubt that a jury would have found that appellant took advantage of a position of trust in committing the crimes to which he pleaded no contest based on his familial relationship to the victims. Therefore, any Cunningham error was harmless.

C. Ineffective Assistance of Counsel

Appellant asserts ineffective assistance of counsel based on a failure to request a continuance and counsels failure to object to alleged sentencing error. Both ineffectiveness claims challenge the adequacy of representation during the sentencing hearing.

To establish constitutionally inadequate representation, a defendant must show that (1) counsels representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsels representation subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsels failings, the result would have been more favorable to the defendant. [Citations.] (People v. Mitcham (1992) 1 Cal.4th 1027, 1058; Strickland v. Washington (1984) 466 U.S. 668, 687-696.)

The defendant bears a burden that is difficult to carry on appeal. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) The burden is to establish the claim not as a matter of speculation but as a matter of demonstrable reality. (People v. Reeves (1966) 64 Cal.2d 766, 774.) The appellate court must consider whether the record contains any explanation for the challenged aspects of the representation provided by counsel. (People v. Mitcham, supra, 1 Cal.4th at p. 1058, citing People v. Haskett (1990) 52 Cal.3d 210, 248.)  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. [Citations.] (People v. Mitcham, supra, at p. 1058.)

At the December 12, 2006 sentencing hearing, following defense counsels introduction to the court, the judge stated, [y]ou filed your sentencing statement, because I was looking for it yesterday and I didnt have it, and I havent read it, so it is going to be passed until I can.[4] Following a discussion off the record, the judge said, [w]e are able to proceed at this time. The Peoples sentencing memorandum is rather concise . . . .

Appellant claims ineffective assistance based on counsels failure to request a continuance following the trial judges concession at sentencing that he had not read a Sentencing Memorandum filed by appellants counsel. However, the record clearly shows the judge was referring to the prosecutions Peoples Sentencing Statement (Sentencing Statement) and not to appellants Sentencing Memorandum.

Appellants counsel filed a Sentencing Memorandum on December 9, 2006. The prosecution filed its Sentencing Statement on December 11, 2006, the day before the sentencing hearing. At the December 12, 2006 hearing, the judge commented that he was looking for it yesterday, [December 11, 2006,] and I didnt have it. The court was obviously referring to the prosecutions Sentencing Statement, which indeed was filed only the day before the hearing, and not to the defense memorandum which had been filed four days prior to the hearing. Moreover, the courts reference to the document as rather concise had to be a reference to the prosecutions statement, which was three pages in length, and not to the seven-page defense memorandum, which was accompanied by 52 pages of attachments.

Lastly, the judge demonstrated knowledge of the content of appellants Sentencing Memorandum when he stated, I have read and considered the defendants sentencing memorandum with the attachments thereto, including, lets see[,] it was Drs. Weiner and Kline, I believe, off the top of my head. And the photographs, letters of support and various other documents. It is also noteworthy that the court expressed awareness that the appellant has no criminal history, but has some psychological disorders, matters specifically referenced in the Sentencing Memorandum. These comments dispel any doubt that the trial court read and considered the defense submittal before sentencing. Therefore, it was not deficient for defense counsel to fail to request a continuance of the hearing to allow the court more time to read the prosecutors statement.[5] We note that the prosecutions statement requested the maximum sentence permitted by the plea agreement, a position defense counsel hardly would have wanted the sentencing judge to dwell upon. Therefore, we reject appellants claim that the failure to request a continuance was ineffective assistance.

Appellant also claims defense counsel was ineffective in not objecting to the trial courts failure to state reasons for imposing consecutive sentences. During sentencing, the judge stated, [o]n Counts two, three, four, five, six, seven, eight, nine, [ten] and [eleven], [appellant] will be sentenced to one[-]third of the mid term of six years, which is two years on each of those counts, and that will be consecutive sentences . . . .

It is true that the decision to impose consecutive sentences is a sentencing choice for which the trial court must state its reasons. ( 1170, subd. (c); Cal. Rules of Court, rule 4.406(b)(5); People v. Coelho (2001) 89 Cal.App.4th 861, 886.) As noted earlier, the judge specifically stated immediately before imposing sentence that the appellant took advantage of a position of trust, the victims were particularly vulnerable and the defendant has limited remorse. At least the first two factors can be appropriately used either to support imposition of an upper term or to impose consecutive sentences. (Rules 4.421(a)(3), (a)(11), 4.425(b).)

While the trial court did not specifically assign any single factor to impose consecutive sentences for the remaining counts, the trial court need only rely on one factor to impose consecutive sentences. (People v. Davis (1995) 10 Cal.4th 463, 552; see also People v. Bishop (1984) 158 Cal.App.3d 373, 382-383.) Thus, it is reasonable to infer that the court relied on one of the two articulated factors to support the upper term, and one to impose consecutive sentences.

Our Supreme Court has stated, [a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffective assistance of counsel. . . . (People v. Kelly (1992) 1 Cal.4th 495, 540, citing People v. Frierson (1991) 53 Cal.3d 730, 747.) Moreover, the reasonable assumption that such objections would be overruled constitutes a rational tactical basis for failing to object. (People v. Samayoa (1997) 15 Cal.4th 795, 848.) Because this inference is a reasonable one, counsel rationally assumed an objection would be futile, and was not ineffective in failing to object.

In addition, appellant implicitly agreed as part of his plea agreement to the imposition of consecutive sentences as to all counts. The plea agreement specified a term of 20 to 28 years, which necessarily included imposing consecutive sentences for at least six, and as many as all ten, remaining counts in order to reach the aggregate sentencing range. Thus, another rational reason appellants counsel did not object to the sentence was because it was consistent with the plea agreement. Therefore, counsels performance was not deficient in failing to object to the consecutive sentences imposed.

IV. DISPOSITION

The sentence is affirmed.

_

Ruvolo, P. J.

We concur:

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Reardon, J.

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Rivera, J.

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[1] Unless otherwise noted, all statutory references hereafter are to the Penal Code.

[2]Cunningham v. California (2007) 549 U.S. 270, 127 S.Ct. 856 (Cunningham).

[3] We vacated submission on April 1, 2008, several days after this Supreme Court decision was filed, and requested the parties to address by supplemental briefs what application to this case, if any, the decision in People v. French (2008) 43 Cal.4th 36 (French) has to the issues raised by appellant. Upon completion of that briefing on May 1, 2008, the case was deemed resubmitted. (See Order (Ruvolo, P. J.) April 1, 2008.)

[4] The record does not identify explicitly to whom the trial court was referring in directing its comment to you.

[5] In his reply brief, appellant asks that we remand the matter to clarify to what sentencing memorandum the court referred. Since it is clear from the record the trial judge was referring to the prosecutions Sentencing Statement, a remand in unnecessary.