P. v. Cox

Filed 8/31/09 P. v. Cox CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant admitted that he violated his probation by failing to annually update his registration as a sex offender in violation of former Penal Code section 290, subdivision (a)(1)(D).[1] His probation was revoked and he was sentenced to the middle term of two years in state prison. In this appeal he argues that the trial court erred by considering his failure to comply with sex offender registration requirements as a reason to deny probation. He claims the imposition of the registration requirements upon him was a denial of his equal protection rights. We find that defendant forfeited any challenge to the validity of the registration order by failing to object in the trial court, and no inadequate assistance of counsel has been established on appeal. We therefore affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY[2]

As part of a negotiated disposition in a juvenile proceeding initiated pursuant to Welfare and Institutions Code section 602, on April 29, 1999, defendant admitted commission of the offense of sodomy on a person under the age of 18, a felony violation of Penal Code section 286, subdivision (b)(1). Defendant, who was then 14 years old, admitted that he had sodomized his seven-year-old cousin. After defendant violated his probation, the court committed him to the California Youth Authority for a maximum term of three years and two months. Before the term expired, the court extended defendants Youth Authority commitment for two years pursuant to Welfare and Institutions Code section 1800. Before that two-year extension expired, the district attorney filed a second section 1800petition to further extend defendants civil confinement.(See In re Lemanuel C. (2007) 41 Cal.4th 33, 38.) Defendants CYA commitment was ultimately extended to December 13, 2006. (Id. at p. 40.)

On March 19, 2007, defendant entered a no contest plea to a violation of section 290, subdivision (a)(1)(D), and was placed on probation. His probation was revoked in June of 2007, and defendant admitted a probation violation for commission of acts of vandalism and threats to commit acts of violence at his grandmothers residence. His probation was reinstated, but revoked again on December 7, 2007. Defendant admitted another violation of probation on December 7, 2007, based on another failure to comply with his duty to register annually as a sex offender.

At a sentencing hearing on February 20, 2008, the trial court considered a supplemental probation report and adopted the probation departments recommendation of revocation of probation. The court found that defendant was not a suitable candidate for probation in light of his non-compliance to date, and further found that he was a high risk to the community safety. Defendant was denied reinstatement of probation and the court imposed the middle term of two years in state prison.

DISCUSSION

Defendant complains that the trial court relied on an improper factor to deny him a further grant of probation and impose a two-year state prison term. His position is that the court erred by finding he violated probation by failing to renew his sex offender registration because he was not required by law to register as an offender pursuant to section 290. Defendant points out that at the time the complaint was filed in the present case, March 6, 2007, he was no longer legally subject to mandatory registration requirements following the decision of the California Supreme Court in People v. Hofsheier (2006) 37 Cal.4th 1185, 1207 (Hofsheier). He argues that [b]ased on the opinion in Hofsheier the imposition of the mandatory registration requirement on him thereafter constituted a denial of equal protection under the federal and state Constitutions. Defendant acknowledges that he did not object at sentencing to the denial of probation based on his failure to register, but claims the omission was a violation of his right to effective assistance of counsel.

In Hofsheier, the 22-year-old defendant pled guilty to unlawful oral copulation with a 16-year-old victim in violation of section 288a, subdivision (b)(1), an offense punishable by imprisonment in the state prison, or in a county jail for a period of not more than one year. (Hofsheier, supra, 37 Cal.4th 1185, 1198.) Under section 290, subdivisions (b) and (c), any person convicted of violating section 288a, among other specified offenses, must register as a sex offender for the rest of his or her life. On appeal, the defendant challenged the imposition upon him of the mandatory registration requirements as a denial of equal protection, based on the asserted unlawful classification that a person convicted of unlawful sexual intercourse with a minor in violation of section 261.5 would, under the same circumstances, be subject to discretionary rather than mandatory registration. (Hofsheier, supra, at p. 1198.) The court concluded that the defendant demonstrated he was similarly situated to another set of offenders who were not subject to a mandatory sex offender registration requirementthose convicted of unlawful intercourse with a minor. (Id. at pp. 11991200.) No rational basis was found for the classification that required mandatory lifetime registration for a sex offender convicted of nonforcible oral copulation with a 16-year-old girl, but not for a person convicted of the arguably more serious offense of nonforcible sexual intercourse with a girl of the same age. (Id. at pp. 12011207.) The Court explained: We perceive no reason why the Legislature would conclude that persons who are convicted of voluntary oral copulation with adolescents 16 to 17 years old, as opposed to those who are convicted of voluntary intercourse with adolescents in that same age group, constitute a class of particularly incorrigible offenders [citation] who require lifetime surveillance . . . . (Id. at pp. 12061207.)

Defendant asserts that as in Hofsheier his prior conviction of the offense of sodomy of a person who was under 18 years old ( 286, subd. (b)(1)), triggers a mandatory registration requirement under section 290, whereas discretionary registration requirements apply to a person convicted of unlawful sexual intercourse with a 14-year-old in violation of section 261.5. He therefore maintains that such disparate treatment violates equal protection under Hofsheier.

I. Defendants Failure to Object to use of Sex Offender Registration Violations as a Sentencing Factor.

Before reaching the merits of defendants contention, we observe that the procedural posture of the present case conspicuously distinguishes it from others which have dealt with the equal protection implications of the sex offender registration scheme. Defendant has not moved to vacate the sex offender registration order.[3] (Cf. In re J.P. (2009) 170 Cal.App.4th 1292, 12931294; People v. Hernandez (2008) 166 Cal.App.4th 641, 645; People v. Manchel (2008) 163 Cal.App.4th 1108, 1110; People v. Garcia (2008) 161 Cal.App.4th 475, 478.) He did not seek to defend a charge that he violated the sex offender registration requirements by claiming denial of equal protection. (Cf. People v. King (2007) 151 Cal.App.4th 1304, 1306.) He has not sought to reverse a registration order imposed upon him in the trial court associated with a conviction of specified qualifying offense. (Cf. Hofsheier, supra, 37 Cal.4th 1185, 11921193; People v. Anderson (2008) 168 Cal.App.4th 135, 140.) In fact, by his plea in the trial court defendant effectively admitted commission of the elements of the sex offender registration offense, including the validity of the registration requirements. Instead, defendant is challenging the registration requirements imposed upon him by claiming erroneous reliance on that factor by the trial court to deny him reinstatement of probation. And he does so although he neither moved in the trial court to set aside his admission of a probation violation, nor objected at the sentencing hearing to use of his violation of the registration requirements as an aggravating factor.[4] (Cf. People v. Hernandez, supra, at p. 647.)

Defendant has forfeited any challenge to reliance on an improper sentencing factor in this appeal by failing to object on that ground in the trial court. He did not object to the reference to the probation violations in the probation report, or to the trial courts statement during the sentencing hearing that defendant violated his probation on two occasions by failing to register. In People v. Scott (1994) 9 Cal.4th 331, 356, our high court held that complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal. Strong policy reasons exist for such a rule: It 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.) In contrast, an objection may be raised for the first time on appeal where it concerns an unauthorized sentence . . . . (People v. Sexton (1995) 33 Cal.App.4th 64, 69, quoting from People v. Scott, supra, at p. 354.) [A] sentence is generally unauthorized where it could not lawfully be imposed under any circumstance in the particular case. Appellate courts are willing to intervene in the first instance because such error is clear and correctable independent of any factual issues presented by the record at sentencing. (People v. Scott, supra, at p. 354; see also People v. McGee (1993) 15 Cal.App.4th 107, 117.)

Defendant does not assert that the sentence imposed was unauthorized, but rather that impermissible information was considered as a factor in aggravation. He had ample opportunity to challenge the contents of the probation report or dispute any reliance by the trial court upon his registration violations as a factor in aggravation. Had defendant made an objection or directed the trial courts attention to the validity of the registration requirements as imposed upon him, the court may have reexamined the sentencing choice in light of the objection. Therefore, the claim of improper use of an aggravating factor has been forfeited for lack of an objection. (People v. Lucas (1995) 12 Cal.4th 415, 495; People v. Dancer (1996) 45 Cal.App.4th 1677, 1693, overruled on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123; People v. Douglas (1995) 36 Cal.App.4th 1681, 16911692.)

II. The Claim of Ineffective Assistance of Counsel.

We move to defendants claim of ineffective assistance of counsel. The principles that govern defendants claim of constitutionally inadequate representation are settled. (In re Lucas (2004) 33 Cal.4th 682, 721.) To establish a claim of inadequate assistance, a defendant must show counsels representation was deficient in that it fell below an objective standard of reasonableness . . . under prevailing professional norms. [Citations.] In addition, a defendant is required to show he or she was prejudiced by counsels deficient representation. [Citations.] In determining prejudice, we inquire whether there is a reasonable probability that, but for counsels deficiencies, the result would have been more favorable to the defendant. (People v. Frye (1998) 18 Cal.4th 894, 979.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Williams (1997) 16 Cal.4th 153, 215; see also In re Jones (1996) 13 Cal.4th 552, 561.) Further,  When . . . the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsels reasons. . . . Because the appellate record ordinarily does not show the reasons for defense counsels actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, not on appeal. [Citation.] (People v. Lucero (2000) 23 Cal.4th 692, 728729.)   The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter. [Citation.] [Citation.] (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007; see also In re Cox (2003) 30 Cal.4th 974, 1016; In re Clark (1993) 5 Cal.4th 750, 766.)

We cannot find inadequate assistance of counsel on the record before us. Nothing in the record discloses the reason for counsels failure to object to use of the probation violations to deny reinstatement of probation. Defense counsel may have decided that an objection was ill-advised or futile due to the persuasive information stated in the probation report that thoroughly supported a denial of probation: defendant was still subject to the registration order at the times of the alleged violations; he twice admitted that he violated probation by failing to register as ordered; he only sporadically participated in ordered sex offender counseling programs; he had a history of behavioral problems while a ward of the California Youth Authority; he failed to maintain steady employment; he committed a violent act of vandalism at his grandmothers residence and threatened her with a knife; and he declined to take medication for his diagnosed mental illness. In light of the numerous aggravating factors in the record independent of violation of the challenged registration condition that supported denial of reinstatement of probation, counsel may have reasonably concluded that an objection was pointless.

The critical factor on appeal is this: we do not know the reason for counsels failure to pursue an objection to the courts consideration of evidence of the previously admitted probation violations as a reason to deny probation. We have no way of discerning from the record if counsels actions were the result of lack of awareness, or based on an informed tactical decision that an objection may not have been ultimately advantageous to defendant. To find inadequate representation on appeal the record must affirmatively negate any conceivable, legitimate tactical purpose for counsels omission. (People v. Scott (1997) 15 Cal.4th 1188, 12121213; People v. Lucas, supra, 12 Cal.4th 415, 442; People v. Mesa, supra, 144 Cal.App.4th 1000, 1008.) To prevail, defendant must overcome the strong presumption that counsels actions were sound trial strategy under the circumstances prevailing at trial. (People v. Freeman (1994) 8 Cal.4th 450, 498.) The  courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight. [Citation.] (People v. Brodit (1998) 61 Cal.App.4th 1312, 13351336.) On appeal,  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 [that counsel provided ineffective assistance] must be rejected. [Citations.] (People v. Mitcham (1992) 1 Cal.4th 1027, 1058; see also People v. Rios (1992) 9 Cal.App.4th 692, 704.) We cannot speculate from the silent record before us, and without a definitive indication of inexcusable ignorance or oversight by defendants attorney, we cannot find ineffective representation on appeal. (People v. Hart (1999) 20 Cal.4th 546, 630; People v. Williams, supra, 16 Cal.4th 153, 262; People v. Montiel (1993) 5 Cal.4th 877, 921; People v. Aubrey (1999) 70 Cal.App.4th 1088, 1105.)

An additional, related reason to deny the claim of inadequate assistance of counsel is lack of prejudice. In any case, when considering a claim of ineffective assistance of counsel, a court need not determine whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. [Citation.] A defendant must prove prejudice that is a  demonstrable reality, not simply speculation. [Citations.] (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) The record reveals an abundance of aggravating circumstances in support of the trial courts apparently resolute and completely justified decision to refuse to reinstate probation. We conclude that there is no reasonable possibility the courts sentencing decision was affected by counsels failure to present an equal protection objection to consideration of the registration offense which, as we have noted, was previously admitted by defendant and therefore no prejudice has been established. (People v. Kennedy (2005) 36 Cal.4th 595, 638-639; People v. Osband (1996) 13 Cal.4th 622, 729; People v. Crittenden (1994) 9 Cal.4th 83, 152; People v. Cruz (1995) 38 Cal.App.4th 427, 433434; People v. Forster (1994) 29 Cal.App.4th 1746, 1759.)[5]

Accordingly, the judgment is affirmed.

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[1] All further statutory references are to the Penal Code unless otherwise indicated. Former section 290, subdivision (a)(1)(D), is now section 290.012, subdivision (a).

[2] In light of defendants plea, much of our recitation of the pertinent facts is taken from the probation report.

[3] We realize that following the judgment from which appeal has been taken in this case defendant received notification from the Department of Justice that he is no longer subject to the obligation to register as a sex offender.

[4] We also note that defendant did not request or receive a certificate of probable cause in the trial court to authorize him to challenge the validity of his plea on the basis of an equal protection violation or inadequate assistance of counsel associated with entry of the plea. (See People v. Cole (2001) 88 Cal.App.4th 850, 868.) Defendants notice of appeal specifies that the appeal is based on the sentence or other matters occurring after the plea. (Cal. Rules of Court, [former] rule 31(d).)

[5] We point out that nothing we have stated in this opinion precludes defendant from moving to terminate his obligation to register as a sex offender. (See People v. Luansing (Aug. 11, 2009, B210413) ___ Cal.App.4th ___ [D.A.R. 11832, 11835].)

* Retired judge of the Superior Court of Marin County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.