P. v. Camacho

Filed 6/17/08 P. v. Camacho CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Martin Ortiz Camacho entered a negotiated plea of no contest to stalking in violation of a court order (with use of a knife) and misdemeanor battery. The trial court dismissed several counts consistent with the plea bargain. It then denied probation and sentenced defendant to the middle term of three years for the stalking conviction plus a one-year enhancement for use of the knife. On appeal, defendant contends that the trial court abused its discretion by denying probation in that it relied on improper factors in doing so. In a separate petition for writ of habeas corpus, which we ordered considered with the appeal, defendant claims that his plea is invalid because the trial court failed to ascertain that there was a factual basis for it. We affirm the judgment. We also dispose of the habeas corpus petition by separate order filed this day.

background

Defendant found the victim at her place of employment, tried to kiss her, and struck her. He told her not to call the police or he would kill her. He telephoned her throughout the day repeating the threat. Near midnight he went to the victims home and tried to pry open the window. The victim saw this and called 911. Defendant broke the window with his fist and entered the home through the window. The victim ran outside. Defendant followed, caught the victim, and threatened to kidnap her.

The probation officer recommended against probation. Her report listed five possible factors in aggravation described in California Rules of Court, rule 4.421 and one possible factor in mitigation described in rule 4.423. She recommended, however, that the proceedings be suspended and defendant be temporarily placed in prison for a psychological evaluation pursuant to Penal Code section 1203.03. The trial court so ordered.

The psychological report highlighted certain findings and concluded as follows: This report was prepared to evaluate the defendants potential for functioning successfully on probation, including the likelihood of re-offense. The above findings, impressions and considerations provide [sic] against probation and in favor of continued incarceration. Based on the nature of the case, the fact that [defendant] has a history of minimizing his behavior, the fact that there is an identified victim and that [defendant] has no remorse about his crime suggests that [defendant] would likely re-offend. His history suggests that he has not learned from his behavior and it is suggested that this may be in part to a lack of accountability, he has never served time for his criminal behavior.

At the sentencing hearing, the prosecutor argued for a prison sentence consistent with the negotiated maximum. Defendant argued for probation. At the conclusion of the arguments the following colloquy occurred.

THE COURT: All right. Well, even his response to the recommendation from the prison [Penal Code section] 1203.03 seems to indicate that he continues to have excuses for negativity involved around him, and it does cry out that he does have no respect for this legal system, and he does continue to minimize his behavior. And the Court did note a complete lack of remorse in--and was fortunate to get a disposition that did not impose upon him the strike and serious, serious offense. I do not see this as a probation case, at all. So probation is denied. [] [Defendant] is committed to the Department of Corrections, for the middle term, for . . . the stalking charge [plus the one-year enhancement] for a total of four years. [] [Calculation of time-served credits, imposition of fines and fees, order for biological identification information, order for no contact with victim, order for remand to Sheriffs custody.]

[Defense counsel]: And as to the misdemeanor charge, is probation denied, at this time?

THE COURT: Probation is denied.

[Defendant]: So then, now, Ill be going to prison, Your Honor?

THE COURT: Thats correct.

discussion

Defendant contends that the trial court erred in denying probation because it relied on two improper sentencing factors. Defendant cites the trial courts reliance on his receiving the benefit of a plea bargain (fortunate to get a disposition) and avoiding conviction of a strike offense (did not impose upon him a strike). According to defendant, it is irrelevant to probation suitability whether he benefitted from a plea bargain and incorrect to believe that he avoided a strike conviction given that stalking using a deadly weapon is a serious felony and therefore a strike.[1] The People counter that defendant has forfeited his claim of trial court error by failing to raise it below. We agree with the People.

California Rules of Court, rule 4.433 requires a judge imposing sentence to [p]ronounce the courts judgment and sentence, stating the terms thereof and giving reasons for those matters for which reasons are required by law. (Cal. Rules of Court, rule 4.433(c)(5).) The trial court is required to state on the record its reasons for imposing a prison sentence and thereby denying probation. (Id., rule 4.406(b)(2).) The requirement encourages the careful exercise of discretion and decreases the risk of error. In the event ambiguities, errors, or omissions appear in the courts reasoning, the parties can seek an immediate clarification or change. The statement of reasons also supplies the reviewing court with information needed to assess the merits of any sentencing claim and the prejudicial effect of any error. (People v. Scott (1994) 9 Cal.4th 331, 351 (Scott).)

Despite the importance of the requirement, an objection to the courts statement of reasons, or lack thereof, may not be raised for the first time on appeal. (Scott, supra,9 Cal.4th at p. 353.) As the Scott court explained, the waiver doctrine should apply to claims involving the trial courts failure to properly make or articulate its discretionary sentencing choices. Included in this category are . . . cases in which the court purportedly erred because it . . . failed to state any reasons or give a sufficient number of valid reasons. (Ibid.) The policy rationale underlying the waiver doctrine is that [i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. (People v. Vera (1997) 15 Cal.4th 269, 276.) [C]ounsel is charged with understanding, advocating, and clarifying permissible sentencing choices at the hearing. Routine defects in the courts statement of reasons are easily prevented and corrected if called to the courts attention. (Scott, supra, 9 Cal.4th at p. 353.)

Here, defendants claims of judicial error concern the trial courts fact-specific exercise of its sentencing discretion. Defendant, however, failed to raise those claims at the sentencing hearing. He has therefore waived the claims. (Scott, supra, 9 Cal.4th at pp. 353-356.)

Defendant urges, however, that he could have had no expectation that the court might deny probation because of the asserted improper factors. This analysis is erroneous.

Scott held that the forfeiture rule only applies where the parties are given a meaningful opportunity to object. (Scott, supra, 9 Cal.4th at p. 356.) Recently, in People v. Gonzalez (2003) 31 Cal.4th 745, 752 (Gonzalez), the court said:As previously explained, the Scott rule applies when the trial court clearly apprise[s] the parties of the sentence the court intends to impose and the reasons that support any discretionary choices [citation], and gives the parties a chance to seek clarification or change [citation] by objecting to errors in the sentence. The parties are given an adequate opportunity to seek such clarifications or changes if, at any time during the sentencing hearing, the trial court describes the sentence it intends to impose and the reasons for the sentence, and the court thereafter considers the objections of the parties before the actual sentencing. The court need not expressly describe its proposed sentence as tentative so long as it demonstrates a willingness to consider such objections. If the court, after listening to the parties objections, concludes that its proposed sentence is legally sound, it may simply state that it is imposing the sentence it has just described, without reiterating the particulars of that sentence. By contrast, if the trial court finds that one of the parties has raised a meritorious objection to the proposed sentence, it should alter its sentence accordingly. [] It is only if the trial court fails to give the parties any meaningful opportunity to object that the Scott rule becomes inapplicable. (Ibid., quoting Scott, supra, 9 Cal.4th at pp. 351, 356.)

Here, after reviewing the relevant documents and hearing the arguments of counsel, the trial court imposed the sentence for the reasons defendant now challenges. After doing so, it made a series of orders, clarified the disposition of the misdemeanor count with defense counsel, and conversed with defendant. During this exchange, defense counsel did not mention the courts denial of probation or object to the reasons for denying probation. There is nothing in the record to indicate that the court would not have considered objections to its rationale had they been raised during that time. This is not a case like People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, which the Gonzalez court cited as an example of failing to give a meaningful opportunity to object, where the court immediately declared a recess after placing the defendant on probation without a hearing from either party. (Gonzalez, supra, 31 Cal.4th at p. 752.) Nor is this a case like In re Khonsavanh S. (1998) 67 Cal.App.4th 532, which defendant relies upon. In Khonsavanh, the court considered the propriety of a probation condition in spite of the absence of an objection because of the peculiar circumstances in which defense counsel had little chance to react and was utterly surprised. (Id. at p. 537.) While the trial court here did not express a proposed sentence and ask if the parties objected to the proposed sentence, defense counsel nevertheless had a meaningful opportunity to object to the reasons the trial court gave for denying probation.

Defendant asks us to review his claim by exercising our discretion. We decline. It is true that an appellate court may review a forfeited claim in the exercise of its discretion. (In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7.) But The appellate courts typically have engaged in discretionary review only when a forfeited claim involves an important issue of constitutional law or a substantial right. (Ibid.) This case, however, involves an issue of routine sentencing error.

Defendants fallback argument is that he received ineffective assistance of counsel because his counsel failed to object to the trial courts improper sentencing rationale. Defendant fails to carry his burden on this claim.

To prevail on a claim of ineffective assistance of counsel, defendant must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. (People v. Bolin (1998) 18 Cal.4th 297, 333.) [P]rejudice must be affirmatively proved; the record must demonstrate a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Ibid., quoting Strickland v. Washington (1984) 466 U.S. 668, 694.)

Here, even if trial counsel had made the objections and arguments urged on appeal, there is no indication in the record that the trial court would have felt compelled to grant defendant probation. To the contrary, the probation and psychological reports are consistent in recommending against probation. In addition, the probation report offers five aggravating factors that the trial court could have relied upon for its sentence choice. Moreover, the trial court expressly relied on defendants lack of remorse, a factor not mentioned in the probation report. (Cal. Rules of Court, rule 4.414(b)(7) [whether a defendant is remorseful is a proper consideration affecting probation].) And the trial courts general comment, I do not see this as a probation case, at all, makes clear that the trial court was disinclined to grant probation in this case. Had trial counsel objected as urged by defendant and had the trial court sustained the objection, the trial court would unquestionably have clarified that defendants lack of remorse made him unsuitable for probation and it was imposing a prison sentence because of one or more of the factors cited in the probation report.[2]

Defendant makes no contrary argument. He merely reargues his position by raising points that are favorable to a grant of probation.

In short, the trial court elected to sentence defendant to prison and there are several valid reasons upon which it could have expressly relied for that election. As stated in the harmless-error context, Where sentencing error involves the failure to state reasons for making a particular sentencing choice . . . reviewing courts have consistently declined to remand cases where doing so would be an idle act that exalts form over substance because it is not reasonably probable the court would impose a different sentence. (People v. Coelho (2001) 89 Cal.App.4th 861, 889.) The point is equally applicable in the context of showing prejudice from supposed ineffective assistance of counsel. We therefore conclude that it is not reasonably probable that a sentence more favorable to [defendant] would have been imposed even if the [trial] court had [discounted the supposed improper] factors in the manner suggested by [defendant]. (People v. Vacca (1995) 38 Cal.App.4th 804, 809.)

disposition

The judgment is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Mihara, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] The trial court dismissed two strike counts pursuant to the plea bargain.

[2] Strictly speaking, defendants contention fails on the merits because the trial court was not required to give reasons for denying probation. Neither [Penal Code] section 1170 [subdivision] (c) nor these [sentencing] rules requires the judge to give reasons explaining why possible dispositions were rejected; for example, the judge must state his reasons for imposing a prison sentence, but need not explain why he denied probation. (People v. Villanueva (1991) 230 Cal.App.3d 1157, 1160; see Cal. Rules of Court, rule 4.406(b)(1) [trial court required to give reasons for granting probation]; id., rule 4.406(b)(2) [trial court required to give reasons for Imposing a prison sentence and thereby denying probation].)