Filed 9/23/13 P. v. Awan CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(San
Joaquin)
THE PEOPLE,
Plaintiff and Respondent,
v.
KHALID MAHMOOD AWAN,
Defendant and Appellant.
C067626
(Super. Ct. No.
LF010862B)
A
jury convicted defendant Khalid Mahmood Awan of
of methamphetamine for sale and found that he was personally armed with
a firearm. The jury acquitted defendant
on the remaining counts.
The court sentenced defendant to
prison for an aggregate term of four years four
months.
Defendant appeals. He contends the trial court abused its
discretion and violated his constitutional rights
in denying probation. We disagree and
will affirm the judgment.
Facts at Trial
name="_ftnref1" title="">[1]
On August 15, 2008, Lodi police officers went to a two-bedroom
residence located on Rutledge Drive to conduct a probation search on Todd
Mileham and Sheila Robinson. Mileham and
Robinson lived in a walled-off dining room.
Defendant occupied one of the two bedrooms with Elena Chavez and their
infant child. Defendant was not present
when the officers arrived. A search of
defendant’s bedroom revealed a safe containing a total of 57 grams, or two
ounces, of methamphetamine in two plastic baggies; numerous tablets of other
drugs, including Soma and Diazepam; bank account deposit receipts; cell phones;
keys; a total of $3,165 in cash in two plastic baggies; a handgun, magazine,
and five live rounds; and pornographic materials. Other items found in defendant’s bedroom
included a bank statement of accounts and checkbook in defendant’s name, an
unloaded pistol, 7.4 grams of marijuana, a digital pocket scale, a purse with
tablets of Oxycontin and Endocet, a form and a receipt in Chavez’s name, and
tablets of other drugs including Percocet, Alprazolam, Vicodin, and Soma. In the living room close to defendant’s
bedroom, an officer found a small stack of mail, some of which was addressed to
defendant at the Rutledge Drive address.
The mail was not booked into evidence nor was a photo of it taken.
Mileham testified he used
methamphetamine daily and bought it from defendant, never from Chavez. Mileham stated that he paid rent in cash to
defendant. Mileham saw defendant deal
methamphetamine numerous times and occasionally marijuana.
Defendant testified at trial and
denied living at the residence that was searched, denied ownership of the safe
and contents, and denied selling methamphetamine to Mileham. Defendant explained that his mail was at the
residence because Chavez had picked it up from a post office box she shared
with him and his whole family.
Sentencing
Prior to sentencing, the probation
officer reported that defendant did not accept responsibility, blamed others
including Chavez who he planned to marry, and asserted the charges and his
conviction stemmed from racial prejudice.
In aggravation, the probation officer noted that the crime indicated
planning, sophistication, or professionalism and involved a large quantity of
contraband, and that defendant’s conduct reflected a serious danger to society. In mitigation, the probation officer noted
that defendant had an insignificant criminal record. The probation officer recommended that
probation be denied because defendant was not a suitable candidate for
probation.
Defense counsel filed a written request
for probation, discussing the factors related to the crime and to
defendant. Although police found
contraband, money, firearms, and personal effects belonging to defendant and
Chavez in the bedroom, defense counsel noted that defendant was not the subject
of the initial probation search and was not present, and claimed defendant did
not live at the residence which was the home of Chavez and their child. Defense counsel noted defendant’s prior
misdemeanor battery conviction for which he successfully completed
probation. Defense counsel asserted
defendant would be able to comply with probation having previously completed
probation as well as his compliance with court orders and appearances during
the pendency of the current charges.
Although unemployed, defendant had previously worked in various
positions. Defense counsel claimed
defendant was motivated to provide for his family and needed to support his six
children. Defense counsel claimed
defendant was remorseful, posed no danger to anyone, and that defendant’s role
was “minor.â€
At sentencing, the court stated that
it had read the probation report and defense counsel’s written request for
probation. Defense counsel asserted that
defendant was suitable for probation because defendant had no significant
criminal record and reiterated that defendant had made his appearances. Defense counsel claimed there were no
victims, harm, or monetary loss. Defense
counsel commented that the “going rate†for defendant’s offense in “early
resolution court†was four months local and if not in such court, six
months. With the gun enhancement,
defense counsel suggested “double that time to a year local.â€
The prosecutor opposed probation and
claimed defendant would be unable to comply with probation, reiterating the
probation officer’s statement that defendant blamed everyone but himself and
refused to accept responsibility. The
prosecutor stated that defense counsel was “right in some respects. This case could have been a probation case,
and that’s what we offered him, to accept responsibility early and resolve the
case.†The prosecutor explained the
original offer was four years and four months, but at trial probation had been
offered due to court congestion and the prosecutor’s caseload. The prosecutor asserted that probation would
have been a “slap on the wrist†for two ounces of methamphetamine and a
firearm. The prosecutor sought the
midterm based on the quantity of methamphetamine and the gun.
Defense counsel objected to using
defendant’s failure to accept blame as a factor weighing against probation,
commenting that there were people who entered a plea without accepting
blame. Defense counsel sought the low
term at most.
The trial court noted that defendant
had also been offered a 90-day diagnostic and a year local which defendant also
rejected. The court commented that it
had “tried very hard to convince [defendant] to take a local disposition and
[he] absolutely would not do it†and had explained to defendant that if he went
to trial “which is [his] right†and he was convicted, he had “a very good
possibility of going to prison and [he] decided to take that chance.â€
Defendant made a statement. He claimed that he did not blame Chavez. He said the drugs were not hers, they were
his. He admitted that that was not what
he had previously said. Then defendant
said the drugs belonged to Mileham. When
the court confronted defendant that he had just admitted the drugs belonged to
him, defendant explained that he did not want Chavez blamed. He also admitted the safe and gun were in his
room but claimed he did not have the combination to the safe. When the trial court confronted defendant
with the defense at trial where he essentially blamed Chavez, defendant asked
for a Marsden
Defendant subsequently withdrew his request for new counsel.
At the reconvened sentencing
hearing, the court commented, “I know your words today are different than what
your words were during trial, and that’s because today’s the day for
sentencing.†The court noted that
defendant had been given a “fair offer†at the outset and stated: “I’ll be honest with you, when I came out
here I was -- I was thinking I’ve never thought of probation. Probation is not even gonna [
considered all the exhibits in that brief, the probation officer feelings that
probation’s not appropriate. The only
question in my mind is should you get the lower term or the midterm.†The court imposed the low term based on
defendant’s lack of a criminal record and his age (30 years old), but noted his
lack of remorse or consideration for the victims, the substantial amount of
contraband, and the presence of a gun.
Analysis
Defendant contends the court abused
its discretion and violated his constitutional rights to a jury trial and due
process in denying probation for exercising his right to a trial. Defendant argues that the court stated “in
effect†that defendant had “forfeited his right to be given a chance on
probation by insisting on going to trial.â€
The People assert that defendant’s
constitutional challenge has been forfeited by his failure to raise the issue
at sentencing. Defendant replies that
his constitutional challenge is not forfeited to the extent he argues that the
trial court’s abuse of discretion in denying probation had the additional legal
consequence of violating the Constitution.
A failure to object forfeits a claim
on appeal that the court erroneously exercised its discretionary sentencing
choices. ( ADDIN BA xc <@cs> xl 41 s
HDIXYU000001 xhfl Rep xpl 1 l "People
v. Scott (1994)
vindictiveness is also forfeited. (See ADDIN
BA xc <@cs> xl 58 s HDIXYU000002 xhfl Rep xpl 1 l "
1992)
[vindictiveness claim based on harsher sentence after successful appeal]; ADDIN
BA xc <@cs> xl 53 s HDIXYU000003 xhfl Rep xpl 1 l "
(1998)
HDIXYU000003 xpl 2 Williams).)
Assuming the constitutional argument
has been forfeited but to forestall an ineffective assistance of counsel claim
(see ADDIN BA xc <@$cs> xl 41 s
HDIXYU000003 xhfl Rep xpl 1 Williams, supra, 61
Cal.App.4th at p. 657), we reject defendant’s constitutional challenge on the
merits.
“It is well settled that to punish a
person for exercising a constitutional right is ‘a due process violation of the
most basic sort.’ ( ADDIN BA xc <@cs> xl 88 s
HDIXYU000004 xhfl Rep xpl 1 l "Bordenkircher
v. Hayes (1978)
S.Ct. 663, 668]" Bordenkircher v. Hayes (1978) 434 U.S. 357, 363 [54 L.Ed.2d 604,
610, 98 S.Ct. 663, 668].) The
constitutional right to trial by jury in criminal prosecutions is fundamental
to our system of justice [citations]; thus, [our Supreme Court has] stated that
‘only the most compelling reasons can justify any interference, however slight,
with an accused’s prerogative to personally decide whether to stand trial or to
waive his rights by pleading guilty.’
[Citation.] ‘A court may not
offer any inducement in return for a plea of guilty or nolo contendere. It may not treat a defendant more leniently
because he foregoes his right to trial or more harshly because he exercises
that right.’ [Citation.]†( ADDIN BA xc <@cs> xl 44 s
HDIXYU000005 xhfl Rep xpl 1 l "In
re Lewallen (1979)
HDIXYU000005 xpl 2 Lewallen);
ADDIN BA xc <@cs> xl 48 s
HDIXYU000006 xhfl Rep xpl 1 l "People
v. Collins (2001)
following trial defendant received a more severe sentence than he was offered
during plea negotiations does not in itself support the inference that he was
penalized for exercising his constitutional rights.†( ADDIN BA xc <@cs> xl 39 s
HDIXYU000007 xhfl Rep xpl 1 l "People
v. Szeto (1981)
defendant may receive a more severe sentence following trial than he would have
received had he pleaded guilty; the trial itself may reveal more adverse information
about him than was previously known.†( ADDIN BA xc <@$cs> xl 36 s
HDIXYU000005 xhfl Rep xpl 1 Lewallen, supra, 23
Cal.3d at p. 281.) “There must be some
showing, properly before the appellate court, that the higher sentence was
imposed as punishment for exercise of the right.†( ADDIN BA xc <@cs> xl 50 s
HDIXYU000008 xhfl Rep xpl 1 l "People
v. Angus (1980)
ADDIN
BA xc <@$cs> xl 30 s HDIXYU000005 xhfl Rep Lewallen,
supra, 23 Cal.3d 274 determined that
two statements made by the trial court demonstrated that the court imposed a
harsher sentence due to the petitioner’s exercise of his jury trial right. The trial court questioned defense counsel’s
suggestion that informal probation was sufficient “ ‘after a jury
trial’ †and stated that the defendant would not be
“ ‘penalized’ †for exercising his jury trial right “ ‘but on
the other hand he’s not going to have the consideration he would have had if
there was a plea.’ †(
In another case, focusing on the
court’s statement that “if the minor inconvenienced witnesses by having them
come to court for an adjudication hearing, the option of a disposition under ADDIN
BA xc <@st> xl 58 s HDIXYU000009 l "Welfare and Institutions
Code section 725, subdivision (a)" Welfare and
Institutions Code section 725, subdivision (a) would no longer be available
to him,†the Court of Appeal in ADDIN
BA xc <@cs> xl 40 s HDIXYU000010 xhfl Rep l "
Cal.App.4th 1199 determined that the court improperly considered the
minor’s election to exercise his right to an adjudication. ( ADDIN
BA xc <@$cs> xl 18 s HDIXYU000010 xhfl Rep xpl 1 Id.
at p. 1202.)
In ADDIN
BA xc <@cs> xl 43 s HDIXYU000011 xhfl Rep l "
(1967)
consecutive sentence because it was not “fair†for the defendant “to come to
Court and demand a jury trial, demand the services of the public defender
. . . when there really isn’t any defense to this
case . . . .†( ADDIN BA xc <@$id> xl 20 s ID
xhfl Rep xpl 1 Id. at
p. 242, fn. 4.) ADDIN
BA xc <@$cs> xl 7 s HDIXYU000011 Morales
rejected the People’s position that there were factors supporting the
sentencing decision because the trial court did not consider them. ( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id. at
p. 546.) ADDIN
BA xc <@$cs> xl 7 s HDIXYU000011 Morales
concluded that the trial court penalized the defendant more harshly for
exercising his right to jury trial. ( ADDIN BA xc <@$id> xl 18 s ID
xhfl Rep xpl 1 Id. at
pp. 543-547.)
In ADDIN
BA xc <@cs> xl 48 s HDIXYU000012 xhfl Rep l "
(2009)
“noted that defendant’s acceptance of responsibility came only after he
rejected two plea offers and went to trial--as a result, [the child sexual
assault victim] was forced to endure cross-examination.†(Id.
at p. 412.) The Court of Appeal in ADDIN
BA xc <@$cs> xl 11 s HDIXYU000012 Quintanilla
stated, “Read in context, it is clear the court was explaining why defendant’s
belated expression of acceptance of responsibility did not weigh more heavily
in mitigation: Defendant’s profession of
remorse may have been heartfelt, but it only surfaced after the jury had found
him guilty.†( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id.
at p. 413.)
Defendant argues that the court here
in its statement of reasons “expressed the intention of punishing [him] for
taking his case to trial instead of accepting an early disposition and
probation . . . .†The
People assert that defendant has taken the trial court’s statements out of
context and when considered in context, the court meant that probation was not
warranted due to defendant’s lack of remorse.
We conclude that the court’s
comments are more akin to those in Quintanilla
and do not satisfy the showing required to demonstrate a constitutional
violation. The court had read
defendant’s written request for probation.
Defense counsel initiated the discourse about early disposition and
probation, noting the “going rate,†“early resolution court,†and local time
for defendant’s offense and enhancement.
The prosecutor responded and explained the original offer was four years
four months but at trial, probation had been offered (due to court congestion
and his caseload) which was a “slap on the wrist.†The court’s response, read in context,
reflects that the court was explaining why defendant’s lack of remorse or his
failure to accept responsibility and the amount of contraband justified denial
of probation and imposition of the low term.
The court’s comments reflect that it took into account defendant’s
attitude toward the offense and his character as evidenced by his behavior and
demeanor at trial and at sentencing. The
court had acquired much more information about defendant and the case, having
presided over trial, heard the evidence, and read and considered defense
counsel’s written request for probation in which defendant denied living at the
residence. Defendant’s statements at
sentencing wherein he admitted living at the residence and claimed both that he
possessed the drugs and did not possess the drugs were conflicting in and of
themselves and conflicted with his trial testimony. Moreover, the court cited reasons for denying
probation and sentencing defendant to prison:
his lack of remorse and the substantial amount of contraband. There is no reasonable basis for concluding
that the trial court punished defendant for exercising his jury trial right.
Defendant claims the court
erroneously relied upon his failure to take responsibility or lack of remorse
because he consistently denied culpability for the offenses. Defendant asserts the evidence was
conflicting and the jury acquitted him on several other counts.
We find no abuse of discretion. ( ADDIN BA xc <@cs> xl 45 s
HDIXYU000013 xhfl Rep xpl 1 l "People
v. Sandoval (2007)
lack of remorse in denying probation. ( ADDIN BA xc <@ru> xl 37 s
HDIXYU000014 xpl 1 l "Cal. Rules of Court, rule 4.414(b)(7)" Cal. Rules of Court,
rule 4.414(b)(7).)
a defendant denies culpability, a trial court assesses the evidence and where
it is overwhelming, the trial court may rely upon lack of remorse in
aggravation. ( ADDIN BA xc <@cs> xl 49 s
HDIXYU000015 xhfl Rep xpl 1 l "People
v. Leung (1992)
the evidence which controls whether the lack of remorse factor applies. (See ADDIN
BA xc <@cs> xl 43 s HDIXYU000016 xhfl Rep xpl 1 l "
Cal.4th 63, 85-86" People v. Towne (2008) 44 Cal.4th 63, 85-86.)
Mileham testified defendant, not
Chavez, sold methamphetamine to him but did not testify defendant sold the
other drugs (oxycodone and hydrocodone) found in the bedroom. The jury convicted defendant of possession of
methamphetamine for sale for the two ounces of methamphetamine found in the
safe but acquitted him on counts charging possession of hydrocodone and
oxycodone on the same occasion and counts charging possession of
methamphetamine and possession of methamphetamine for sale on another occasion
which did not involve Mileham or the Rutledge Drive residence. Defendant shared the bedroom with Chavez and
his bank account statement and checkbook were found in the room. Mail addressed to defendant at the Rutledge
Drive address was found as well. The
evidence against defendant for possession of methamphetamine for sale (the
methamphetamine found in the safe in his bedroom) was overwhelming. Although defendant testified at trial and
denied culpability, the court had the opportunity to observe his demeanor on
the stand. The trial court obviously did
not believe defendant. Further,
defendant admitted at one point at sentencing that the methamphetamine belonged
to him and that he resided in the bedroom which conflicted with his testimony
at trial. The trial court was justified
in its disbelief of defendant’s claim that he was remorseful. ( ADDIN BA xc <@ru> xl 13 s
HDIXYU000017 xpl 1 l "Rule 4.408(a)" Rule 4.408(a).)
The People claim that the trial
court properly exercised its discretion, having considered and relied upon the
factors in aggravation listed in the probation report which included
appropriate and independent factors in addition to defendant’s lack of remorse. Even assuming lack of remorse was not a
proper factor, we agree that the error was harmless.
“The mere fact a trial court erroneously relies upon certain
factors in [making its sentencing decision] does not per se require
reversal. Reversal is only required
where there is a reasonable probability the trial court would sentence the
defendant differently absent the erroneous factors. [Citation.]
Thus, where the trial court has stated several factors warranting the
[sentencing decision], and only some of those factors are erroneous, the
sentence is generally affirmed.
[Citations.] Indeed, even one
valid factor is sufficient to justify the [sentencing decision]. [Citations.]â€
(
ADDIN BA xc <@cs> xl 50 s HDIXYU000018 xhfl Rep xpl 1 l "People v. Holguin
(1989)
Holguin (1989) 213 Cal.App.3d 1308, 1319.)
In denying probation and
sentencing defendant to prison for the low term, the trial court cited not only
defendant’s lack of remorse but also the amount of contraband, almost two
ounces, a substantial amount. ( ADDIN BA xc <@ru> xl 18 s
HDIXYU000019 xpl 1 l "Rule 4.421 (a)(10)" Rule 4.421(a)(10).) The trial
court obviously concurred with the prosecutor’s position that probation would
have been a “slap on the wrist†for two ounces of methamphetamine and a
firearm. We find any error in relying
upon remorse harmless because there is no showing that defendant would receive
probation on remand. Given the
substantial amount of contraband and the presence of a gun, there is no reason
to believe the court’s comments about probation having been offered
inappropriately affected its decision.
Further, any error was harmless, even assuming for the sake of argument
that review is governed by the ADDIN
BA xc <@$cs> xl 7 s HDIXYU000020 Chapman
standard used to evaluate federal constitutional error,
i.e., whether the error was “harmless beyond a reasonable doubt.†( ADDIN BA xc <@cs> xl 63 s
HDIXYU000020 xhfl Rep xpl 1 l "Chapman
v. California (1967)
DISPOSITION
The judgment is
affirmed.
BLEASE , Acting
P. J.
I
concur:
MAURO , J.
I concur,
but write separately to express three things.
First,
because defendant failed to object at sentencing, the majority opinion properly
concludes he has forfeited his challenges to the trial court’s reasons for
denying probation. I would not reach the merits of defendant’s claims
under the rubric of incompetence of counsel, because defendant fails to brief
that issue. (See People v. Anderson (2007) 152 Cal.App.4th 919,
929 [“A point not argued or supported by citation to authority is
forfeitedâ€].) I would not exercise
my discretion to bypass forfeiture in this case.
Second,
assuming, as does the majority opinion, that defendant’s claim were couched as
an argument that defense counsel was incompetent in failing to object,
defendant would have to show “there is a reasonable probability†that he would
have obtained a better result in the absence of counsel’s failings. (Strickland
v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 697]; see People
v. Ledesma (1987) 43 Cal.3d 171, 217-218.) Therefore, even if I agreed
with defendant that the trial court erred, I would apply the Strickland
standard of prejudice, not the Chapman standard referenced by the
majority opinion. Any error in this case would be harmless because the
trial court’s concededly valid reason for denying probation, namely, the large
quantity of drugs, amply justifies the trial court’s view that probation was
not appropriate, and the only question was whether to give defendant the low
term or the middle term, a question resolved in defendant’s favor.
Therefore, “It is improbable that a more favorable result would be obtained by
a remand for sentencing†in this case. (People v. Parrott (1986)
179 Cal.App.3d 1119, 1125.)
Third, were
it necessary to reach the merits, I would agree with the majority opinion’s
conclusion that, read in context, the trial court’s comments at sentencing were
not improper, but I add the following observations: The trial court did
not deny probation based on defendant’s exercise of his right to a jury trial;
it instead reminded defendant that before trial it had indicated a prison
sentence was likely if defendant were convicted. Nor did the trial court
improperly rely on defendant’s lack of remorse, given defendant’s implausible
claim at the sentencing hearing that he was not responsible for the drugs or
gun found in the safe in his bedroom.
Read in
context, the trial court’s comments clearly signal that it was noting evidence
supportive of its subsequent permissible observation that defendant lacked
remorse, a proper consideration for sentencing.
The trial court was permitted to consider what it had observed at trial
in its evaluation of defendant for sentencing purposes. This additional information regarding
defendant’s attitude toward his crimes supported, together with defendant’s
blame-shifting and gamesmanship at sentencing, the trial court’s later
observation that defendant lacked remorse.
When remarking on defendant’s failure to resolve his case early, the
trial court was clearly focused on these observations, which it had witnessed
firsthand, both at the trial and during the sentencing hearing. The trial court did not sentence defendant
more harshly because defendant
exercised his right to a jury trial.
DUARTE,
J.
name="_ftn1" title="">[1] We recount those facts underlying defendant’s
conviction for possession of methamphetamine for sale on August 15, 2008. Defendant was acquitted of possession of
methamphetamine and possession of methamphetamine for sale on November 14,
2008.
name="_ftn2" title="">[2] People
v. Marsden (1970) 2 Cal.3d 118.
