P. v. Patino

Filed 10/9/08 P. v. Patino 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(San Joaquin)

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Defendant Arturo Diaz Patino was sentenced to two years in state prison when the trial court determined he had violated the probation imposed following his conviction for first degree residential burglary. He appeals, contending there was insufficient evidence that he violated his probation. We disagree and shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2007, defendant pleaded no contest to first degree burglary (Pen. Code,  459-462), in exchange for the Peoples agreement to dismiss three unrelated misdemeanors and recommend probation on a fourth unrelated misdemeanor (case No. SM252453A). The trial court suspended imposition of sentence and granted five years formal probation on terms and conditions that included 365 days in the county jail. The conditions also included the requirements that defendant pay restitution to the victim, in an amount to be determined by the probation department, and violate no laws.

Six months later, the People moved for an order to show cause, alleging defendant violated the terms of his probation by committing vehicle burglary in violation of Penal Code section 459, and tampering with a vehicle in violation of Vehicle Code section 10852. In January 2008, the trial court held a hearing on the matter.

The following evidence was presented at the hearing: Roberta Tinnin was on her front porch around 10:00 a.m. when she saw someone inside the cab of her neighbors truck about 15 feet away on the same side of the street. She heard a coughing noise from outside the truck but continued to watch the person inside the truck and saw him pull the stereo out of the dashboard. She also saw the drivers side window was broken.

Then, she observed the individual get out of the truck and put the stereo under his jacket. Tinnin said hey, saw defendant standing near the truck where she previously heard the cough come from, and both the individual with the stereo and defendant walked away. Tinnin immediately told her neighbor, the victim, what she had seen; the victim drove off in a different vehicle to follow defendant and his accomplice.

The victim caught up to the two men, as they were joined by a third, older man carrying a bicycle. The victim continued to follow defendant and the older man, who remained on foot, but the individual with the stereo rode off on the bicycle. The victim located a police officer and reported the incident.

The court found defendant in violation of his probation, revoked his probation, and sentenced defendant to two years in state prison. Defendant was awarded 333 days of custody credit and was ordered to pay $400 in restitution to the victim of the underlying crime for which defendant was previously convicted. Defendant appeals.

DISCUSSION

Defendant contends the trial courts finding of a probation violation must be reversed because there was insufficient evidence that defendant aided and abetted the individual who took the stereo from the victims car. Defendant misunderstands his burden on appeal.

Probation violations‑‑even alleged new crimes‑‑need be proved only by a preponderance of the evidence, and we review the trial courts finding that a violation occurred only for abuse of discretion causing a miscarriage of justice.^[1] (Pen. Code,  1203.2, subds. (a), (b); People v. Rodriguez (1990) 51 Cal.3d 437, 443; People v. Zaring (1992) 8 Cal.App.4th 362, 378.) [P]robation may be revoked despite the fact that the evidence of the probationers guilt may be insufficient to convict him of the new offense. (Rodriguez, supra, 51 Cal.3d at p. 442, followed in In re Eddie M. (2003) 31 Cal.4th 480, 505.) Because defendant was not prosecuted for the alleged new crime in this proceeding, the traditional substantial evidence standard of review, upon which both defendant and the People rely, is inapplicable.

With these points in mind, we turn to defendants contention.

Defendant claims there was insufficient evidence he was the lookout man for the actual burglar. In particular, he argues that his mere presence at the burglary is insufficient to sustain a probation violation. We disagree.

A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. (People v. Cooper (1991) 53 Cal.3d 1158, 1164; People v. Beeman (1984) 35 Cal.3d 547, 561.)

In finding a probation violation here, the trial court found it reasonable to infer, based on the evidence submitted, that defendant arrived with the individual who took the stereo out of the dashboard, and acted as a lookout by standing near the truck. As noted by the court, defendant also left with the individual who took the stereo after Tinnin called out to them.

Each of these findings is reasonable based on the evidence presented and supports a finding that defendant aided and abetted in the crime. (See People v. Campbell (1994) 25 Cal.App.4th 402, 409 [presence at the scene of the crime, companionship, and conduct before and after the offense may be considered in determining aider and abettor liability].) Accordingly, defendant has shown no error in the trial courts finding that defendant aided and abetted in burglarizing and vandalizing a vehicle.^[2]

Defendant also contends the trial court abused its discretion in ordering him to pay $400 in restitution to the victim of the underlying first degree burglary. Specifically, he claims the only evidence submitted was the prosecutors statement that the victim twice told the police he suffered approximately $400 in damage as a result of defendants criminal act. Defendant argues that statement contained at least two, if not more, levels of hearsay.

Defendant, however, failed to object either to the evidentiary basis for the courts ruling, or to the courts order itself. Counsels failure to object is not excused simply because the probation report did not give defendant notice that he would have to pay restitution to his victim. In fact, defendant did have such notice. He was ordered to pay restitution to the victim when he was originally sentenced in June 2007.

Accordingly, by his failure to object, defendant forfeited any claim that the order was merely unwarranted by the evidence, as distinct from being unauthorized by statute. (People v. Smith (2001) 24 Cal.4th 849, 852.) As the order for restitution was within the sentencing courts statutory authority, and defendant neither raised an objection to the amount of the order nor requested a hearing to determine it (see  1202.4, subd. (f)(1)), we do not decide whether the court abused its discretion in determining the amount. (People v. Brasure (2008) 42 Cal.4th 1037, 1075.)

Because trial counsel failed to object to the imposition of a restitution order, defendant also claims he suffered ineffective assistance of counsel. Under both the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution, a criminal defendant has a right to the assistance of counsel. [Citations.] This right entitles the defendant not to some bare assistance but rather to effective assistance. [Citation.] [I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsels performance was deficient because his representation fell below an objective standard of reasonableness . . . under prevailing professional norms. [Citations.] Second, he must also show prejudice flowing from counsels performance or lack thereof. [Citation.] [] [T]he mere failure to object rarely rises to a level implicating ones constitutional right to effective legal counsel. [Citation.] If, as here, the record fails to show why counsel failed to object, the claim of ineffective assistance must be rejected on appeal unless counsel was asked for an explanation and failed to provide one or there can be no satisfactory explanation. [Citation.] A reviewing court will not second-guess trial counsels reasonable tactical decisions. (People v. Mitchell (2008) 164 Cal.App.4th 442, 466-467 (Mitchell).)

Here, other than boilerplate language regarding ineffective assistance of counsel, defendants claim is limited to the following: There is no question that defense counsel should have objected to the imposition of restitution upon this patently inadequate record. There could have been no tactical reason for failing to object to the imposition of restitution. [] . . . [] The $400 restitution order will be taken from [defendants] prison wages. [Citation.] Without doubt, this constitutes prejudice.

Defendants argument presumes, without citation to the record or any relevant legal authority, that counsels failure to object fell below an objective standard of reasonableness and [he] was prejudiced thereby. (Mitchell, supra, 164 Cal.App.4th at p. 467.) Such an undeveloped claim is insufficient on appeal.

DISPOSITION

The judgment is affirmed.

BUTZ , J.

We concur:

BLEASE , Acting P.J.

NICHOLSON , J.

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^[1] Defendant refers to the preponderance of the evidence and abuse of discretion standards in his opening brief, however, the weight of his argument and citations to authority address convictions dependent upon a finding of guilty beyond a reasonable doubt.

^[2] Because we find no error in the trial courts ruling, we need not address defendants claim that he suffered prejudice as a result of the trial courts error.