P. v. Huff
Filed 12/17/08 P. v. Huff CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
| THE PEOPLE, Plaintiff and Respondent, v. JORDAN DAVID HUFF, Defendant and Appellant. | F054014 (Super. Ct. No. F07900791) OPINION |
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Alan M. Simpson, Judge.
Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Melissa Lipon, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant, Jordan David Huff, was convicted after a jury trial of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b), count one)[1] and dissuading a witness by force or threat (§ 136.1, subd. (c)(1), count two).[2] The jury found that appellant personally used a semiautomatic firearm (§ 12022.5, subd. (a)(1)). The trial court sentenced appellant to prison terms of six years on count one, four years for the firearm enhancement, and a consecutive term of one year for dissuading a witness by force or threat.
Appellant contends the trial court erred in failing to state reasons for not placing him on probation, for imposing the midterm sentence on counts one and two, and for giving him consecutive sentences on counts one and two. Appellant further contends the trial court denied him his right to a jury trial in sentencing him to a consecutive term on count two. We reject both arguments and will affirm.
FACTS
Appellant is Daniela G.’s boyfriend. Daniela lived on East Buckingham Street with her 16-year-old daughter M. and her younger son. Marcus Major, a codefendant, is Daniela’s cousin. M. and Major had a brother-sister relationship. M. had known appellant since she was 12 years old.
On January 13, 2007, appellant, Daniela and her children, Marcus Major, and Keith Rose were at Daniela’s home. Other people were coming and going that day. M. came home about 4:00 p.m. Appellant, Major, and M. began to argue about M.’s boyfriend and photographs that she had posted on her My Space website.
M. was dating J.E. Daniela had argued with J.E. on the telephone earlier that day. J.E. insisted on coming to Daniela’s home but she told him he was not welcome because he was disrespectful. Daniela thought J.E. was the source of many of her problems with M., who was running away from home and acting out of control. M. and Major got into an argument. Daniela told M. to leave because she did not want J.E. in the home.
M. was upset and crying as she left the home and walked down the block toward where J.E. was waiting. M.’s little brother was accompanying her. Appellant and Major left Daniela’s home about the same time. As M. approached the end of the block, she heard someone yell at her. M. remembered her boyfriend yelled at her to hurry up. Some cars drove past her. Appellant and Major were in one of the cars with Major in the front passenger seat and appellant in the back. They drove around Buckingham to a frontage road. M. and her brother were up under a wood fence.
M. saw a little gun in appellant’s hand. M. had seen appellant with guns before, but not the gun that he was carrying in the car. M. heard gun shots from appellant’s car. M. believed the shots were fired in the air. M. thought three or four shots were fired. She grabbed her brother and started running. As M. reached her home, she yelled, “I can’t believe Ducey shot at me.”[3] M. did not think appellant was shooting at her, but was scared by the incident. M. admitted that on the day of the shooting, she told investigators appellant had shot at her. At home, M. yelled at her mother because appellant had shot a gun in front of her brother, who was on his bicycle.
Shortly after the shooting, appellant called Daniela and told her to “[g]et the fuck outside” to meet him. Daniela testified she was not afraid of appellant. Daniela denied receiving any threats from appellant, or seeing him with a gun. She told him that she wanted out of the relationship. Daniela told Officer Beau Burger that appellant told her to, “Get the fuck outside.” Daniela was afraid of appellant, went outside, and got into the car. Daniela drove appellant to the area of Highway 99 and Olive. Daniela told appellant she wanted out.
Appellant told Daniela she could have that, and further told her: “Just don’t say anything. Just hold it down. You can be out free and clear with no strings attached. Nobody has to get hurt, but if you or your daughter says anything, your daughter will get the business.” Daniela explained to Burger that by “get the business,” appellant meant he would kill M. Daniela believed appellant would carry out his threat. Daniela told Burger that earlier that day appellant displayed a firearm to her and made a racking motion with the gun. Appellant told Daniela she had a smart mouth, that she was pissing him off, and to shut up. Daniela thought appellant was going to shoot her.
M. told Burger she heard Major yell name B.P. at her. This was a nickname or street name for M. Appellant was sitting in the back seat pointing a silver handgun at her. M. heard two shots and saw a red muzzle flash coming from the gun. She heard four shots altogether. M. gestured her boyfriend to go away, ran home, and told her mother she could not believe appellant just shot at her.
The parties read into the record a stipulation that if called to testify, a neighbor, Donald Morgan, witnessed the shooting at about 5:00 p.m. on January 13, 2007. The neighbor saw a light blue car drive past his house with three African-American men inside. As the car turned onto a frontage road, the neighbor heard gunshots. The neighbor collected four shell casings and gave them to Officer Donovan Pope. According to Pope, the bag handed to him by the neighbor contained three .25 caliber shell casings and one .22 caliber shell casing. Pope explained that shell casings are ejected from semiautomatic and automatic firearms.
Pope noticed a fresh bullet hole in the fence where M. and her brother were at the time of the shooting. The hole was consistent with a .22 or .25 caliber bullet.
FAILING TO STATE REASONS FOR SENTENCE
Appellant contends the trial court erred in failing to state reasons for denying him probation, for imposing the midterm sentence on counts one and two, and for imposing a consecutive prison term on counts one and two. Appellant also contends his trial counsel was ineffective for failing to object to the trial court’s sentence should we apply the doctrine of forfeiture to this issue. Respondent argues forfeiture applies and that the trial court adequately stated its sentencing choices on the record.
Sentencing Hearing
The probation officer’s report noted that appellant had juvenile misdemeanor adjudications for petty theft and vandalism in 2000. In 2001, appellant violated the terms of his probation and was committed to boot camp. The report notes appellant was statutorily eligible for probation. As aggravating factors, the report states appellant’s sustained petitions as a juvenile are numerous or of increasing seriousness. The report noted no circumstances in mitigation. As for consecutive sentencing, the report noted the crimes involved separate acts of violence or threat of violence and the crimes were committed at different times or places.
The probation officer believed appellant was an inappropriate candidate for probation because he committed a violent offense that could have been fatal, threatening M. and her younger brother. The victims were afraid of appellant and of possible retaliation because appellant is a gang member.
The probation officer recommended the midterm of six years on count one and a consecutive sentence of one-third the midterm on count two for an additional year in prison. With the gun use enhancement, appellant’s total recommended prison term was 11 years. The trial court signed the probation report, indicating it was considered prior to sentencing.
At the sentencing hearing on August 27, 2007, the trial court indicated it read the probation report including attachments and considered letters sent on behalf of appellant. Defense counsel argued appellant should receive probation or the mitigated prison term and should receive concurrent sentencing on counts one and two. Defense counsel stated she believed appellant would do well on probation. Defense counsel pointed out that appellant’s juvenile adjudications were remote in time. Finally, defense counsel argued that the trial court should reduce appellant’s convictions to misdemeanors pursuant to section 17, subdivision (b) and grant appellant probation.
The prosecutor acknowledged that appellant’s criminal history as a juvenile was not extensive but that appellant had spent nearly a year in boot camp and failed to learn from that experience. Also, appellant had committed his new offenses less than four years after spending nearly a year in juvenile custody. The prosecutor argued the crimes were egregious because they involved a 16-year-old girl and her younger brother walking through a neighborhood and there were neighbors nearby. The court noted that the probation report stated Mr. Morgan was outside along with his son. The prosecutor stated that this child was in the line of fire. The risk of serious injury or death to multiple potential victims justified an upper term sentence.
The trial court did not state reasons for denying appellant probation, for imposing consecutive sentences on counts one and two, or for selecting the midterm sentence. Appellant lodged no objection to the trial court for failing to state reasons for its sentencing choices.
Forfeiture
Respondent contends appellant has forfeited his right to complain about the trial court’s failure to state reasons for its sentencing choices because counsel made no objection at the time of sentencing. We agree.
Assertions of sentencing error not raised to the trial court are generally not cognizable on appeal because the appellant has a duty to raise the issue to the trial court. (People v. Scott (1994) 9 Cal.4th 331, 352-353, 356-357.) A defendant is subject to the doctrine of forfeiture on appeal for failing to raise an issue of the trial court’ sentencing choices for failing to object to the trial court. (People v. Steele (2000) 83 Cal.App.4th 212, 226; People v. deSoto (1997) 54 Cal.App.4th 1, 4.) Appellant failed to object to the trial court’s sentencing of him without a statement of reasons.
Appellant argues, however, that trial counsel was ineffective for failing to object to the trial court when it failed to state reasons for its sentencing choices. The defendant has the burden of proving ineffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the defendant must establish not only deficient performance, which is performance below an objective standard of reasonableness, but also prejudice. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel’s decision making is evaluated in the context of the available facts. To the extent the record fails to disclose why counsel acted or failed to act in the manner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, unless there simply could be no satisfactory explanation. Prejudice must be affirmatively proved. The record must affirmatively demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (People v. Maury (2003) 30 Cal.4th 342, 389.) Attorneys are not expected to engage in tactics or to file motions which are futile. (Id. at p. 390; also see People v. Mendoza (2000) 24 Cal.4th 130, 166.)
A defendant alleging ineffective assistance of trial counsel must demonstrate both deficient performance by counsel and prejudice. (In re Hardy (2007) 41 Cal.4th 977, 1018.) Appellant has failed to demonstrate prejudice from counsel’s failure to object to the trial court for not stating its sentencing choices. Given the strength of aggravating factors coupled with the absence of mitigating factors, counsel was not acting below professional norms in failing to lodge an objection. Furthermore, because there were multiple reasons in the probation report justifying each of the court’s sentencing choices, such an objection likely would have been futile.
Harmless Error
Even if the doctrine of forfeiture did not apply here or if trial counsel was ineffective for failing to object to the trial court for not stating its sentencing choices, any error was harmless. The parties agree that a statement of reasons for denying probation and imposing a consecutive sentence is mandated by statute and rules of court. Section § 1170, subdivision (c) states: “The court shall state the reasons for its sentence choice on the record at the time of sentencing.” California Rules of Court, rule 4.406(b)(2) requires the court to state its reasons for denying probation and rule 4.406(b)(5) requires the court to state its reasons for imposing a consecutive sentence. As appellant points out, under the amended Determinate Sentencing Law, which was in effect when appellant was sentenced on August 27, 2007, the trial court was required to state its reasons for picking a midterm sentence. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) Citing People v. Watson (1956) 46 Cal.2d 818, 826 (Watson), appellant argues that had the trial court thought about its sentencing discretion more carefully by articulating the factors that supported its decision there is “a reasonable probability it may have reached a more favorable result.” We disagree.
The reasons for the appellant’s sentence appear in the probation report as well as the arguments of counsel. The trial court expressly stated that it read and considered the probation report as well as letters submitted on behalf of appellant. The court reviewed mistakes in the probation report with defense counsel and made corrections. Although appellant’s prior criminal record as a juvenile was not as serious as the current offenses, appellant spent time in a boot camp and failed to reform. Appellant’s commitment and release from the boot camp was not so remote in time as to make it irrelevant for the court’s consideration during sentencing.
The probation officer noted no factors in mitigation and defense counsel did not challenge that portion of the probation report. Defense counsel argued not only that appellant would be a good candidate for probation, but that the court should reduce his offenses to misdemeanors and place appellant on probation. The record sets forth a sufficient basis for us to evaluate the sentencing criteria before the trial court. The trial court noted, for instance, that Mr. Morgan’s son was outside when shots were fired. The prosecutor argued that Morgan’s son was in the line of fire and this was a factor justifying an aggravated sentence. M.’s brother was with her at the fence where officers later found a fresh bullet hole.
Where alleged error implicates California statutory law, review is governed by the harmless error standard set forth in People v. Watson, supra, 46 Cal.2d at p. 836. On appeal, we only reverse where there is a reasonable probability of a result more favorable to the defendant if not for the error. (People v. Sanchez (1994) 23 Cal.App.4th 1680, 1684-1685; People v. Dobbins (2005) 127 Cal.App.4th 176, 182-183.)
In People v. Romero (1985) 167 Cal.App.3d 1148, 1151-1152, this court found that the failure of the trial court to state reasons for denying probation was harmless where it was clear the defendant would not be placed on probation. In the instant action, the probation officer’s report noted the gravity of appellant’s offense as well as the fact that there were no mitigating factors. Defense counsel, for good reason, did not dwell on the possibility of probation for her client. Given the gravity of appellant’s offenses and the nature of arguments by counsel at the sentencing hearing, we see no possibility that the trial court would consider placing the appellant on probation.
The same Watson standard of review applies when a court that fails to state reasons for imposing a consecutive prison term. (People v. Sanchez, supra 23 Cal.App.4th at pp. 1684-1685.) Here, the probation officer noted that consecutive sentences were appropriate because the crimes involved separate acts of violence and occurred at separate times and/or places. Appellant committed counts one and two at separate times. The offenses involved separate acts of violence. If we were to remand this case for resentencing, it is likely that the court will merely state one or both of these reasons into the record and again impose consecutive sentences on counts one and two.
Although it may have been error for the trial court to fail to state reasons for imposing midterm sentences on counts one and two, we again find the error harmless under Watson. The offenses appellant committed were very serious and not only posed a threat to M. and her little brother, but to the larger neighborhood in which appellant fired his gun. In imposing the midterm, the trial court had already rejected defense counsel’s arguments that this was a case in which probation could be granted and, alternatively, that the court should impose a mitigated sentence should it commit appellant to prison.
We find that remand of this case to the trial court would not result in a more lenient sentence. In fact, the court showed leniency in light of the prosecutor’s argument that the court should impose an upper term sentence on count one.
RIGHT TO JURY TRIAL FOR CONSECUTIVE SENTENCING
Appellant contends the trial court violated his right to a jury trial in sentencing him to consecutive sentences. Appellant raises this issue to preserve his right to federal review, acknowledging that the California Supreme Court held that defendants receiving consecutive sentences are not entitled to a jury trial in People v. Black (2007) 41 Cal.4th 799, 820-822.) We are bound by the decisions of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We therefore reject this contention.
DISPOSITION
The judgment is affirmed.
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