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P. v. Price

P. v. Price
05:25:2013





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P. v. Price



















Filed 5/8/13 P. v. Price CA2/4

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND APPELLATE DISTRICT



DIVISION FOUR




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THE
PEOPLE,



Plaintiff and Respondent,



v.



RONNIE
PRICE,



Defendant and Appellant.




B239569



(Los Angeles County

Super. Ct. No. BA388473)






APPEAL from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Jose I. Sandoval, Judge. Affirmed as modified.

Rachel Lederman, under appointment by
the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Eric E. Reynolds and Ana R. Duarte, Deputy Attorneys General,
for Plaintiff and Respondent.





Ronnie Price appeals from the judgment
entered following his convictions on one count each of href="http://www.fearnotlaw.com/">simple assault (Pen. Code, § 240),
evading an officer (Veh. Code, § 2800.1, subd. (a)), href="http://www.mcmillanlaw.com/">criminal threats (Pen. Code,
§ 422), possession of a firearm by a felon (Pen. Code, § 12021, subd.
(a)(1)), and possession of ammunition (Pen. Code, § 12316, subd. (b)(1)).href="#_ftn1" name="_ftnref1" title="">[1] Appellant contends that the trial court erred
in sentencing by failing to state its reasons for imposing the upper term and
consecutive sentences. He also contends
that he received ineffective assistance of counsel. We conclude that he forfeited his claim by
failing to object to the court’s failure to state its reasons but that, in any
event, he has not established he was prejudiced by his trial counsel’s failure
to object. We direct the trial court to
correct a clerical error in the abstract of judgment and otherwise affirm.



FACTUAL AND PROCEDURAL
BACKGROUND


Prosecution Evidence

On July 7, 2011, Horace Jordan was staying at the
Midnight Mission in Los Angeles.
Appellant asked Jordan if he would be willing to
participate in a medical survey in exchange for $50 a week for two years. Jordan agreed to participate, and appellant
told him to meet him at 8:00 the following morning.

The following morning, appellant drove
up in a van to meet Jordan at the mission. Jordan and another man got into the van, and Jordan began asking appellant when he would
receive the payment. Appellant and Jordan began arguing, so Jordan decided to get out of the van and
leave.

When Jordan began walking down the street,
appellant got out of the van and began calling Jordan names. Appellant said that he was a member of a gang
called Pueblo. He pulled out a gun
and began walking toward Jordan, declaring, “I can take you out
right now.” Jordan was yelling at appellant in
return. Appellant held the gun so Jordan could see it, but he did not point
it at Jordan.
Appellant eventually stopped and walked back to his van. Jordan called the police.

When the police arrived, appellant
drove away in the van, and the police followed.
There were two passengers in the van with appellant. Appellant drove onto the freeway, and
officers saw him throwing bullets out the van window while he was driving. Officers also saw a gun thrown out the front
passenger window. Appellant was arrested
after getting off the freeway. When
officers searched the van, they found more bullets and a BB gun.



Defense Evidence

Appellant testified that he had been
convicted in 1999 for felony evading arrest and was prohibited from possessing
a firearm as a result of that felony conviction. In July 2011, he was employed as a marketing
specialist for the F.D.A., recruiting subjects for research studies and
transporting them to a clinic.

According to appellant, Jordan demanded that appellant pay him $50
in advance, but appellant told him he could not do that. Jordan became upset, so appellant opened
the van door and let him out. Instead of
leaving, Jordan started yelling through the
passenger window at appellant, calling him names, asking him where his gun was,
telling him to shoot him in the face, and saying, “don’t make me come in
there.” Appellant pulled a BB gun out of
his fanny pack and got out of the van, and when he walked around the van, Jordan dropped a knife that he was holding
and walked down the street. Appellant
testified that he kept the BB gun in his pocket and denied showing it to Jordan or threatening him, although he
admitted telling Jordan that he would deal with Jordan if Jordan harmed him.

One of the passengers in appellant’s
van told appellant that it was illegal for him to have ammunition in the van,
so appellant became worried when he saw Jordan calling the police. Appellant admitted throwing the bullets out
of the van, but he stated that he did not have a gun in the van.



Rebuttal

Los Angeles Police Department Officer
Deon Joseph testified that he had known appellant for about six years and had a
good relationship with him. On July
8, 2011,
Officer Joseph was shocked to see appellant waving to him from a holding cell,
stating that he had never known appellant to be involved in criminal
activity. Appellant told Officer Joseph
that he had a BB gun, but that there also had been a real gun, which he threw
out his car window.



Procedural Background

Appellant was charged in an amended
information with five counts: count 1,
assault with a firearm (§ 245, subd. (a)(2)); count 2, evading an officer
(Veh. Code, § 2800.1, subd. (a)); count 3, criminal threats (§ 422);
count 4, possession of a firearm by a felon (§ 12021, subd. (a)(1)); count
5, possession of ammunition (§ 12316, subd. (b)(1)). The information further alleged the
following: as to count 3, that appellant
personally used a firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a));
as to counts 1 and 3, that appellant suffered three prior serious felony
convictions (§ 667, subd. (a)(1)); as to counts 1, 3, 4, and 5, that
appellant served five prior prison terms (§ 667.5, subd. (b)) and suffered
three prior strikes pursuant to the Three Strikes law (§§ 667, subds.
(b)-(i), 1170.12, subds. (a)-(d)).

Appellant was convicted following a
jury trial of counts 2 through 5 and of the lesser offense of simple assault in
count 1 (§ 240). The jury found
the firearm allegation in count 3 not
true. The court found the prior
conviction allegations to be true.

Appellant filed a Romero motion (People v.
Superior Court (Romero)
(1996) 13 Cal.4th 497), asking the court to strike
his prior convictions. The court granted
the motion in part by striking two of the strikes. The court based its decision primarily on the
age of the strikes, noting that the most recent strike was 28 years old and the
oldest was 39 years old.

The court then sentenced appellant to
a total of 23 years 8 months, calculated as follows. As to the base count, count 3 (criminal
threats), the court chose the upper term of three years, doubled to six years
pursuant to the prior strike. As to count
2, the court imposed a one-year term concurrent with count 3. The court imposed terms of 16 months each on
counts 4 and 5 and three five-year enhancements pursuant to section 667,
subdivision (a)(1). Appellant filed a
timely notice of appeal.



DISCUSSION

Appellant contends that the trial
court erred in failing to state reasons for imposing the upper term and
consecutive sentences.

Section 1170, subdivision (b),
requires the court to “set forth on the record the reasons for imposing the
term selected . . . .” In addition,
subdivision (c) requires the court to “state the reasons for its sentence
choice on the record at the time of sentencing.”

The trial court here did not state any
reasons for choosing the upper term or for imposing consecutive sentences.

Respondent contends that appellant
forfeited a challenge to the trial court’s decision by failing to object at
sentencing. A defendant can forfeit a
claim regarding various sentencing issues, including “cases in which the court
purportedly erred because it double-counted a particular sentencing factor,
misweighed the various factors, or failed to state any reasons or give a
sufficient number of valid reasons.” (>People v. Scott (1994) 9 Cal.4th 331,
353 (Scott).) However, “there must be a meaningful
opportunity to object . . . . This
opportunity can occur only if, during the course of the sentencing hearing
itself and before objections are made, the parties are clearly apprised of the
sentence the court intends to impose and the reasons that support any
discretionary choices.” (>Id. at p. 356.) Here, the parties were never “advised of the
trial court’s intended sentence ‘during the course of the sentencing hearing
itself . . . .’ [Citation.]” (People
v. Gonzalez
(2003) 31 Cal.4th 745, 752.)


However, the transcript reveals that
after the court imposed sentence, the court asked, “Have I missed anything,
counsel?” Both the prosecutor and
defense counsel replied, “I don’t believe so.”
At this point, defense counsel did not raise the court’s failure to
state the reasons for its sentence choice.
We therefore agree with respondent that appellant has forfeited his
claim. (See Scott, supra, 9 Cal.4th
at p. 353 [adhering to the view that a defendant cannot raise for the first
time on appeal “claims involving the trial court’s failure to properly make or
articulate its discretionary sentencing choices”]; People v. Powell (2011) 194 Cal.App.4th 1268, 1297 [finding that
the defendant forfeited his claim that the trial court failed to state reasons
for its sentencing choices where the court asked “‘Is there anything further for
the record,’” and defense counsel replied “‘No, sir.’”].)

Appellant’s second contention is that
he received ineffective assistance of counsel by defense counsel’s failure to
object. “There are two components to an
ineffective assistance of counsel claim:
deficient performance of counsel and prejudice to the petitioner. Strickland
v. Washington
(1984) 466 U.S. 668, 697, informs us that ‘there is no reason
for a court deciding an ineffective assistance claim to approach the inquiry in
the same order or even to address both components of the inquiry if the
defendant makes an insufficient showing on one.
In particular, a court need not determine whether counsel’s performance
was deficient before examining the prejudice suffered by the defendant as a
result of the alleged deficiencies. The
object of an ineffectiveness claim is not to grade counsel’s performance. 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.’” (In re
Cox
(2003) 30 Cal.4th 974, 1019-1020.)
We conclude that appellant has failed to establish prejudice.

Here, defense counsel asked for a
sentence of five years. The prosecution
asked for a sentence of 82 years to life.
The trial court struck two of appellant’s prior strikes, sentenced him
as only a second-strike defendant, and chose a sentence between the two
extremes advocated by the attorneys, 23 years 8 months.

In choosing a sentence, the court
considered the number of five-year enhancements that would apply and to which
offenses they applied. In addition, the
probation report listed aggravating circumstances that included appellant’s
violent conduct and prior convictions, and the report stated that there were no
circumstances in mitigation. “Under California’s determinate sentencing system, the
existence of a single aggravating circumstance is legally sufficient to make
the defendant eligible for the upper term.
[Citation.]” (>People v. Black (2007) 41 Cal.4th 799,
813.)

In light of the court’s leniency in
striking two strikes and the number of aggravating circumstances, it is not
reasonably probable that appellant would have received a lower sentence if
counsel had asked the court to state the reasons for its sentence choice. Thus, appellant was not prejudiced by trial
counsel’s failure to object.

We note that the abstract of judgment
lists only two of the five-year enhancements imposed under section 667,
subdivision (a), although it correctly states that a total of 15 years was
imposed. “Entering a judgment of the
trial court in the minutes is a clerical function. Any discrepancy between the minutes and the
oral pronouncement of a sentence is presumed to be the result of clerical
error. Thus, the oral pronouncement of
sentence prevails in cases where it deviates from that recorded in the
minutes. [Citation.]” (People
v. Price
(2004) 120 Cal.App.4th 224, 242.)
Moreover, “[i]t is, of course, important that courts correct errors and
omissions in abstracts of judgment. An
abstract of judgment is not the judgment of conviction; it does not control if
different from the trial court’s oral judgment and may not add to or modify the
judgment it purports to digest or summarize.” (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We therefore direct the trial court to amend
the abstract of judgment to reflect the third five-year enhancement as
pronounced by the court.

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>DISPOSITION

The trial court is directed
to prepare and forward to the Department
of Corrections and Rehabilitation
an amended abstract of judgment
reflecting that the court imposed three five-year enhancements under section
667, subdivision (a). In all other
respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS





WILLHITE,
Acting P. J.





We concur:







MANELLA, J.







SUZUKAWA, J.





id=ftn1>

href="#_ftnref1"
name="_ftn1" title="">[1] All further statutory references are
to the Penal Code unless otherwise specified.








Description
Ronnie Price appeals from the judgment entered following his convictions on one count each of simple assault (Pen. Code, § 240), evading an officer (Veh. Code, § 2800.1, subd. (a)), criminal threats (Pen. Code, § 422), possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), and possession of ammunition (Pen. Code, § 12316, subd. (b)(1)).[1] Appellant contends that the trial court erred in sentencing by failing to state its reasons for imposing the upper term and consecutive sentences. He also contends that he received ineffective assistance of counsel. We conclude that he forfeited his claim by failing to object to the court’s failure to state its reasons but that, in any event, he has not established he was prejudiced by his trial counsel’s failure to object. We direct the trial court to correct a clerical error in the abstract of judgment and otherwise affirm.
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