P. v. Drury
Filed 3/26/13 P. v. Drury CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JASON MARK DRURY,
Defendant and Appellant.
D061480
(Super. Ct.
No. SCE310658)
APPEAL from
a judgment of the Superior Court
of
County, Charles W. Ervin, Judge. Affirmed as modified.
Jason Mark
Drury pleaded guilty to a single count of committing a lewd or lascivious act
upon a child under the age of fourteen.
(Pen. Code,
title="">[1]
§ 288, subd. (a); count 18.) Drury
appeals the judgment imposing an upper term prison sentence. He contends the matter must be remanded for
resentencing because the court (1) failed to adequately state reasons on the
record for imposing the upper term and (2) erroneously calculated his
presentence conduct credits. We conclude
Drury forfeited, and cannot challenge on appeal, any error by the trial court
in not citing adequate aggravating factors for imposing the upper eight-year
term for count 18 because he did not object below on this ground. Further, in order to forestall an ineffective
assistance of counsel claim, we conclude Drury would not be able to establish
prejudice by his counsel's performance.
We modify the judgment to reflect the correct calculation of conduct credits.
FACTUAL AND
PROCEDURAL BACKGROUND
Because
this appeal involves only a sentencing issue, a detailed recitation of the
facts of the crime is unnecessary. Drury
was charged with multiple offenses after sexually abusing his step-daughter for
approximately two years, beginning when she was nine years old and ending when
she was eleven. In a negotiated plea
agreement, Drury pleaded guilty to a single count of committing a lewd or
lascivious act upon a child under the age of fourteen (§ 288, subd. (a); count
18). The plea agreement indicated the
sentence was to be determined by the court and Drury was notified and agreed
that facts relating to the dismissed charges could be considered in determining
his sentence. (People v. Harvey (1979) 25 Cal.3d 754, 758.)
Before
sentencing, Drury's counsel submitted a statement of mitigation for the court's
consideration. The statement included
letters from his sisters attesting to his good character, Drury's expressed
remorse for his wrongdoing and a psychological report from Dr. Erin Ferma,
Ph.D. determining Drury did not meet the criteria for pedophilia and posed a
low risk for a repeat offense.
At Drury's
sentencing hearing, the court stated it had considered all documents submitted
by Drury including the probation report with sentencing recommendations. It denied probation and ordered Drury to
serve the upper term of eight years, consistent with the probation department's
recommendation. Drury was awarded local
custody credits of 223 actual days, plus 31 days of credit under section 2933.1
for a total of 254 days.
At the
conclusion of the hearing the following colloquy occurred:
"[The
prosecutor]: Certainly, my office
recognize[s] the difficulty in prosecution in this case. We discussed with the victim's family and the
victim what the possible outcomes could
be. And in light of all of that, we
allowed this Defendant to plead to only one count. That being said, eight years is entirely
appropriate for the conduct that this Defendant has committed. . . .
I would ask that the Court sentence this Defendant to eight years.
"[The
court]: Submitted by the People?
"[The
prosecutor]: Yes.
"[The
court]: Submitted, [defense counsel]?
"[Defense
counsel]: Yes.
"[The
court]: . . . [¶] .
. . [¶]
. . . Having considered all of
the facts in this case, the Court concurs with the recommendation of
probation. And it is the judgment and
sentence of this Court that probation be denied. This Defendant [is] committed [to] the
Department of Corrections to serve the term, which is the upper term, of eight
years in State prison. Receiving credit
for time served, with 223 actual [days], 110 [days under section] 4019, 333
[days] total. . . . [¶] .
. . [¶]
. . .
"[Probation
officer]: Your Honor, I'm sorry. I believe the custody credit should be [under
section 2933.1] in this case.
"[The
court]: Thank you. And those credit calculations are as follows—
"[Probation
officer]: It would be 213 actual and
31—[under section 2933.1].
"[The
court]: He will receive those updated
custody and credits as he is entitled to today.
Thank you.
"[Defense
counsel]: Thank you, your
Honor." (Italics added.)
DISCUSSION
On appeal,
Drury claims error based on the trial court's failure to articulate reasons for
imposing the upper term of eight years and seeks remand for resentencing. He contends the court's brief comment it
"concurs with the recommendation of probation" does not meet the
requirement under section 1170, subdivisions (b) and (c) that the court state
its reasons on the record for imposing the upper term. Drury maintains the error was prejudicial
because had the court carefully considered the aggravating and mitigating
factors, it is reasonably probable that a more favorable sentence would have
been imposed. The People respond that
Drury forfeited the issue on appeal by failing to object at the time of
sentencing. Alternatively, the People
argue his contention is meritless and any error is harmless.
I. Standard
of Review
The court
has broad discretion in making sentencing choices. (People
v. Sandoval (2007) 41 Cal.4th 825, 847.)
Nevertheless, a court is required to state its reasons for any
sentencing choice on the record at the time of sentencing. (§ 1170, subd. (c); People v. Ortiz (2012) 208 Cal.App.4th 1354, 1371.) Specifically, the California Rules of Court
require the court to give reasons for selecting one of the three authorized
prison terms referred to in section 1170 subdivision (b). (Cal. Rules of Court, rule 4.420(a).) One aggravating factor is sufficient to
support the imposition of an upper term.
(People v. Davis (1995) 10
Cal.4th 463, 552.)
Cases are
remanded for resentencing only when the court has abused its discretion in
considering the aggravating and mitigating circumstances. (See, e.g., People v. Combs (1986) 184 Cal.App.3d 508, 511-512.) On appeal, the judgment will not be reversed
for the court's failure to state the reasons unless it is reasonably likely
that the defendant would have received a different sentence. (People
v. Sanchez (1994) 23 Cal.App.4th 1680, 1684.) A defendant or his or her counsel must object
at the time of sentencing if the court does not state any reasons or a
sufficient number of reasons for a sentencing choice. (People
v. Scott (1994) 9 Cal.4th 331, 353, 356; People v. Ortiz, supra,
208 Cal.App.4th at p. 1371.) If there is
no objection, any error is deemed waived or forfeited and cannot be challenged
for the first time on appeal. (
II. Forfeiture
Drury's
challenge to the imposition of the upper term must be rejected because he has
forfeited the claim by failing to raise it at the time of sentencing. "[C]omplaints 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." (People
v. Scott, supra, 9 Cal.4th at p. 356; People
v. Gonzalez (2003) 31 Cal.4th 745, 751; see
People v. Powell
(2011) 194 Cal.App.4th 1268, 1297-1298.)
At Drury's
sentencing, the trial court imposed the upper eight-year term, stating:
"Having considered all of the facts in this case, the court concurs with
the recommendation of probation."
Drury was notified before the hearing that the probation officer had
recommended the upper term of eight years.
Thus, at that point, Drury and his counsel were on notice the sentence
would be consistent with the probation report, which all parties had received
before the hearing. Further, in denying
probation, the court indicated it had considered all documents submitted, and cited
several factors on the record: (1) "the nature and circumstances of [this
crime] are more serious than other instances"; (2) "repeated
molestation of the victim"; (3) Drury "took advantage of a position
of trust"; (4) the "emotional injury" imposed on the victim; and
(5) fear inflicted on the victim.
Drury
points out the five reasons cited by the court were exclusively in reference to
the court's denial of probation and it offered no reasons for imposing the
aggravated eight-year upper term. He is
correct that " '[i]n imposing an upper term, the court must set forth on
the record "facts and reasons" [citation], including the
"ultimate facts that the court deemed to be circumstances in
aggravation." ' " (
Cal.App.4th 1293, 1324-1325.)
However,
despite a meaningful opportunity to do so, Drury did not object on the basis
that the trial court failed to adequately state reasons to support its
discretionary sentencing decision. Drury
was represented by counsel at the sentencing
hearing and as explained above, he was made aware the court had read,
reviewed and considered the probation report's recommendation of an eight-year
prison commitment. Further, Drury's
counsel was given the opportunity
to reply to this recommendation, which he used to "submit on the
documents" and highlight the mitigating factors in the psychological
report. Additionally, he heard the court
pronounce the sentence, and made no objections when the court selected the
aggravated upper term.
We are not
persuaded by Drury's contention that "[t]he court's comments, from
immediately after the prosecutor's argument, through the imposition of
judgment, were commenced and completed in one statement, without any
interruption or any opportunity provided for [Drury] or his counsel to
object." (Emphasis omitted.) There is no indication the hearing abruptly
concluded, and indeed, after it announced the sentence, Drury's counsel said,
"Thank you, your Honor." Any
error or defect could have been corrected by a timely and specific objection. "Nothing in the record suggests that
[Drury] or defense counsel was precluded from objecting to the sentence or was in any way denied a meaningful opportunity to state his case for an alternative sentence or
question the court's reasons for a prison sentence." (People
v. Zuniga (1996) 46 Cal.App.4th 81, 84.)
Thus, these circumstances are unlike those in People v. Superior Court (Dorsey)
(1996) 50 Cal.App.4th 1216, relied upon by Drury, where the trial court
announced its sentencing decision and immediately declared a recess without
hearing from either party. The appellate
court held under those circumstances the "parties were never apprised of
the 'sentence the court intends to
impose' [citation] and the prosecutor [the appellant in that case] had no
opportunity, meaningful or otherwise, to object." (Id.
at p. 1224.) Here, procedural due
process—a meaningful opportunity to object—was provided.
By failing
to raise a contemporaneous request for the court to state reasons for its
sentencing decisions, Drury failed to preserve the claim for review. "Under these circumstances, no remand is
required." (People v. Avila (2009) 46 Cal.4th 680, 729.) Because we conclude the issue was forfeited,
we do not address the merits of Drury's
claim.
III. Drury
Cannot Maintain a Claim of Ineffective Assistance of Counsel
Drury has
not raised a claim of ineffective assistance of counsel in view of his
counsel's failure to timely object to the court's imposition of the upper
term. However, to forestall such a
claim, we address whether he could make such a claim. "A defendant has the burden of proving a
claim of ineffective assistance of counsel by showing that (1) his or her trial
counsel's representation fell below an objective standard of reasonableness and
(2) he or she was prejudiced (i.e., there is a reasonable probability that a
more favorable determination would have resulted in the absence of counsel's
deficient
performance)." (
In assessing a claim of ineffective assistance, the reviewing court need
not decide whether counsel's performance fell below an objective standard of
reasonableness if it concludes it is not reasonably probable the defendant
would have obtained a more favorable outcome in the absence of the deficient
performance. (Id. at p. 1373.)
Based on
the record in this case, we conclude that, even had Drury's counsel timely and
specifically objected to the trial court's asserted error, it is not reasonably
probable Drury would have obtained a more favorable outcome, i.e., a lesser
term for count 18. The court was in
agreement with the probation officer about the proper sentence. "At the sentencing hearing, the court
stated that it had read and considered the probation report and the language
the court used in imposing the sentence followed the probation officer's
recommendations." (
reasons for imposing the upper term.
However, had Drury's counsel timely objected to the court's failure to
adequately state reasons for imposing the upper term, the court could have and
likely would have cited one or more of the five reasons stated above for
denying probation. Just "[o]ne
aggravating factor is sufficient to support the imposition of an upper
term." (People v. Ortiz, supra,
208 Cal.App.4th at p. 1371; Davis,
court would have imposed any lesser sentence had Drury's counsel timely
objected. We discern no prejudice and
conclude
Drury's counsel did not provide prejudicially ineffective
assistance.
IV. Calculation
of Conduct Credits
The People
concede, and we agree, that the court miscalculated Drury's custody credits,
and failed to award him all the credits to which he was entitled. Drury was confined in county jail for 223
days from his June 17, 2011 arrest until January 25, 2012, when he was
sentenced to prison for eight years.
v. Browning (1991) 233 Cal.App.3d 1410, 1412 [defendant entitled to credit
from date of arrest through date of sentencing].) Section 2933.1 provides for presentence
custody credits of fifteen percent.
Thus, Drury is entitled to receive 33 days of presentence
credit.
DISPOSITION
The
judgment is modified to reflect Drury is to receive presentence credits of 33
days under Penal Code section 2933.1.
The trial court is directed to amend the abstract of judgment to reflect
this modification and forward a certified copy of the amended abstract to the
affirmed.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
name="_ftn1" title="">[1] All statutory references are to the Penal Code.
name="_ftn2" title="">[2] The miscalculation was caused by the probation officer
erroneously stating at the sentencing hearing that Drury had only served 213
days in actual custody.
