Filed 3/19/18 P. v. Jones 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Butte)
----





THE PEOPLE,

Plaintiff and Respondent,

v.

CASSANDRA RAE JONES,

Defendant and Appellant.


C083261

(Super. Ct. Nos. CM041268, 16CF01350)







Defendant Cassandra Rae Jones violated probation and committed a new felony offense, possession of methamphetamine for sale. The trial court sentenced her to an aggregate three-year eight-month term, including the upper term of three years for the possession for sale, and ordered her to pay various fines and fees.
Defendant now contends (1) the trial court abused its discretion in imposing the upper term, (2) the trial court erred in imposing a drug program fee without determining her ability to pay, and (3) her trial counsel rendered ineffective assistance in failing to object to a supplemental probation report fee imposed without a finding of her ability to pay.
We will affirm the judgment.
BACKGROUND
As a casino worker poured coins from defendant’s purse into a coin sorter, a bag of methamphetamine fell out. Three containers of methamphetamine were ultimately found, holding over 35 grams of the drug. A jury found defendant guilty of misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and misdemeanor possession of a smoking device (§ 11364.1, subd. (a)(1)). Defendant subsequently pleaded guilty to maintaining a place for the use or sale of a controlled substance. (§ 11366.)
At sentencing, the trial court noted the People and the probation department recommended the upper term. But the trial court found unusual circumstances and granted probation, ordering defendant to serve 120 days in custody as a condition of probation. The trial court also imposed a $585 drug program fee pursuant to section 11372.5. At the time, defendant was represented by retained counsel.
Five months later, the People petitioned for a probation violation hearing, alleging defendant had moved without permission, tested positive for methamphetamine, failed to report to probation, and failed to enter a residential treatment program. Two months after that, defendant was pulled over by an officer who recognized her as being on searchable probation. The officer found 3.7 grams of methamphetamine in defendant’s purse. Defendant gave the officer her passcode for her cell phone and said, “You will find the messages you are looking for.” The officer found several text messages regarding drug sales.
Defendant pleaded no contest to possession of methamphetamine for sale. (§ 11378.) The trial court found her in violation of probation.
At sentencing, a probation officer told the court defendant had “been given every opportunity to enter into residential treatment. She has told us that she has contacted them and turns out she hadn’t and when she finally did, she didn’t follow through. We have basically . . . exhausted all options. She’s shown absolutely no interest in actually following through with anything.” The probation report noted defendant had unaddressed mental health and substance abuse issues.
The defense prepared a statement in mitigation, stating the following:
Defendant is a drug addict, which made complying with probation terms difficult. She has been diagnosed as bipolar. Her mother, also a drug addict and mentally ill, abused her. Her father was bipolar and she had destructive relationships with men. She was medicated for anxiety and depression as a child, but as an adult she struggles to pay for medication.
The trial court imposed an aggregate three-year eight-month term, including the upper term of three years for possession of methamphetamine for sale. The court noted it had “reviewed circumstances in mitigation and would note that defendant’s prior conviction[s] as an adult are numerous.” It also noted defendant had served a prior prison term, was on probation when her most recent felony was committed, and her prior performance on probation was unsatisfactory. The trial court added, “No factors in mitigation are noted.”
The trial court ordered various fines and fees, stating it would order the previously ordered $585 drug program fee but found no ability to pay “as it relates to the newer case.” The trial court also ordered a $409 supplemental probation report fee. Defendant was represented by appointed counsel at the time of her plea, but at sentencing she was represented by retained counsel.
DISCUSSION
I
Defendant contends the trial court abused its discretion in imposing the upper term. She argues the court ignored relevant mitigating factors, pointing to the court’s statement that “[n]o factors in mitigation are noted.” She claims many mitigating factors were presented: her crime was not done with sophistication, it was not more egregious than other instances of the same crime, she yielded during the traffic stop, she voluntarily provided her cell phone passcode, her criminal record involved petty theft offenses, she has no history of violence, she is a drug addict, she is bipolar with a long record of mental health treatment, and her performance on probation and parole was mostly satisfactory.
We review a trial court’s decision to impose the upper term for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) An upper term may be based on “any aggravating circumstance” the court deems significant so long as it is “ ‘reasonably related to the decision being made.’ ” (Id. at p. 848.) A court abuses its discretion if it relies on circumstances not relevant to the decision or that “constitute an improper basis for decision.” (Id. at p. 847.) A challenge to the sentence must show the decision was irrational or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) Absent such a showing, “ ‘the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ ” (Id. at pp. 977-978.)
Here, defendant’s claim is forfeited by her counsel’s failure to object at trial. (See People v. Gonzalez (2003) 31 Cal.4th 745, 751 [“A party in a criminal case may not, on appeal, raise ‘claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices’ if the party did not object to the sentence at trial”].)
But even if the challenge had been preserved, we would conclude the trial court did not abuse its discretion. Numerous aggravating factors supported the upper term. (See People v. Black (2007) 41 Cal.4th 799, 815 [the presence of a single aggravating circumstance permits the trial court to impose an upper term].) Defendant committed her new offense while on probation for a similar offense. Her performance on that probation was poor, and her criminal history is not insignificant.
Moreover, while a trial court may properly “ ‘minimize or even entirely disregard mitigating factors without stating its reasons,’ ” it is not clear the trial court did so here. (See People v. Lai (2006) 138 Cal.App.4th 1227, 1258.) The trial court noted that it had “reviewed circumstances in mitigation,” likely referencing defendant’s detailed statement in mitigation. In context, the court’s statement that “[n]o factors in mitigation are noted” was likely a reference to the probation report’s statement that “[n]o mitigating factors were noted.” Accordingly, even if the challenge were preserved, the trial court acted well within its discretion in imposing the upper term.
II
Defendant next claims the trial court erred in imposing a drug program fee without determining her ability to pay. She notes that the trial court contradicted its own findings when it found she had no ability to pay yet imposed the previously imposed $585 fee. She argues the court erred when it originally imposed the fee and compounded the error when it reimposed the fee.
The fee defendant challenges was imposed on September 16, 2015, when she was placed on probation. Defendant never appealed from that order, and thus any challenge to the fee is forfeited. (See People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421 [“a defendant who elects not to appeal an order granting or modifying probation cannot raise claims of error with respect to the grant or modification of probation in a later appeal from a judgment following revocation of probation”]; Cal. Rules of Court, rule 8.308 [notice of appeal must be filed within 60 days of rendition of the judgment or the order appealed from].)
At the sentencing from which defendant now appeals, the trial court did not impose a new drug program fee. It simply acknowledged the fee had already been imposed for defendant’s prior offense. (See People v. Cropsey (2010) 184 Cal.App.4th 961, 965, italics omitted [“[T]o ‘reimpose’ a restitution fine is not to impose a new, prohibited second fine. Rather, to ‘reimpose’ the fine is to confirm or acknowledge the same fine that previously had been imposed upon conviction”].) The trial court was not required to determine defendant’s ability to pay a fee that had already been imposed. And because the trial court was not imposing a new fine, counsel’s failure to object was not ineffective assistance of counsel, as defendant briefly suggests. (See People v. Thompson (2010) 49 Cal.4th 79, 122 [“Counsel is not ineffective for failing to make frivolous or futile motions”].)
III
In addition, defendant argues her trial counsel rendered ineffective assistance in failing to object to the $409 supplemental probation report fee imposed without a finding of her ability to pay.
To establish ineffective assistance of counsel, a defendant must show that her counsel’s performance was deficient as measured against a reasonably competent attorney and that deficient performance prejudiced defendant in that it “ ‘ “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” ’ ” (People v. Thompson, supra, 49 Cal.4th at p. 122.) “[R]arely will an appellate record establish ineffective assistance of counsel.” (Ibid.) If the record sheds no light on counsel’s actions, the claim must be rejected unless no satisfactory explanation exists or counsel was asked for an explanation and failed to provide one. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)
Here, counsel may have opted not to object for a variety of reasons. He may have known of defendant’s ability to pay: the record indicates defendant had a car, a cell phone, and had retained counsel at both sentencing hearings. Moreover, counsel may have deemed an objection futile given that a court may consider future earnings in finding an ability to pay. (People v. Frye (1994) 21 Cal.App.4th 1483, 1487 [“ ‘Ability to pay does not necessarily require existing employment or cash on hand’ ”].) The record does not show that counsel was deficient.

DISPOSITION
The judgment is affirmed.



/S/
MAURO, J.



We concur:



/S/
HULL, Acting P. J.



/S/
HOCH, J.