People v. Pitts CA4/2 ( 2014 )

Filed 1/17/14 P. v. Pitts CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E058701
v. (Super.Ct.No. RIF10001643)
ANTHONY WAYNE PITTS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.
Affirmed.
Sheila O’Connor, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
STATEMENT OF THE CASE
On June 21, 2010, a felony complaint charged defendant and appellant Anthony
Wayne Pitts with two counts of unlawfully committing a lewd and lascivious act upon a
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child under the age of 14 years under Penal Code1 section 288, subdivision (a). The
complaint also alleged two prior offenses within the meaning of section 667,
subdivision (b).
On January 4, 2011, defendant pled guilty to count 1. Thereafter, the court
sentenced defendant to the middle term of six years for count 1, suspended the execution
of the sentence, and then imposed a formal probation period of 60 months with a number
of probation conditions. The court also dismissed count 2 and both prison priors.
On July 25, 2012, the probation department alleged that defendant violated term
30 of his probation—“[p]articipate and complete at your expense any counseling,
rehabilitation/treatment programs deemed appropriate by the Probation Officer, and
authorize release of information relative to progress.” Defendant admitted the violation.
The trial court continued defendant on probation with an additional requirement that
defendant enroll in a counseling program within 30 days.
On March 15, 2013, the probation department again alleged that defendant
violated two terms of his probation, terms 30 and 33. Although probation terms 30 and
33 in the plea agreement differed from terms 30 and 33 in the court’s minute order, the
parties agreed that the allegations related to the same violation as the one in 2012,
whether defendant attended his sex offender counseling program.
1 All statutory references are to the Penal Code unless otherwise specified.
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At the hearing on April 26, 2013, the trial court found defendant in violation of
probation, denied a further grant of probation, and executed the previously imposed but
stayed state prison sentence of six years.
On May 7, 2013, defendant filed a timely notice of appeal.
STATEMENT OF FACTS
In December 2012, Candace Martin, a therapist at the Counseling and
Psychotherapy Center, received a referral from probation to provide services to
defendant. Generally, the program is a 52-week program.
Ms. Martin met defendant on Friday, January 4, 2013, when he attended his first
group session with her as his therapist. The group session had just been changed from
Wednesdays to Fridays. She never saw defendant again until the hearing. She, however,
had one telephone conversation with defendant. She told him that he needed to attend a
group session; he agreed.
Ms. Martin’s group sessions changed back from Fridays to Wednesday.
Defendant never returned to her group. Ms. Martin was aware that defendant had
attended a couple of other therapists’ group sessions prior to her session. It was unclear
the number of times defendant attended.
Defendant was aware that he was required to attend therapy as a probation
requirement. He had started classes and attended a few sessions before he went to
therapy with Ms. Martin. Defendant attended a therapy session with Ms. Martin but then
both the date and time of the class changed.
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Defendant informed the new instructor that he could not attend the new time and
date because of his part-time job. He needed the job to pay for the classes. Defendant
asked whether he could attend a night class; he was informed it was full.
Defendant had a difficult time attending the day classes because he could not take
time off work. He was attempting to fix the conflict in schedule for the group session the
day he appeared in court and was arrested. He believed that because he still had three
years left in his probation that he had time to complete the class.
ANALYSIS
After defendant appealed, and upon his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal. 3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of
the case, a summary of the facts and potential arguable issues, and requesting this court to
undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, and he
has done so. On October 30, 2013, defendant filed a 14-page handwritten brief. In his
brief, defendant essentially argues that he did not violate the terms of his probation and
his counsel rendered ineffective assistance of counsel (IAC).
First, we address defendant’s contention that he did not violate the terms of his
probation. In short, defendant seems to be arguing that there is insufficient evidence to
support the trial court’s finding that he violated the terms of his probation.
The substantial evidence test is the proper standard for appellate review of a
judgment following a probation revocation hearing where the appellant claims the
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evidence was insufficient. (People v. Kurey (2001) 88 Cal. App. 4th 840, 848.) In Kurey,
the court limited its inquiry to considering whether, “upon review of the entire record,
there is substantial evidence of solid value, contradicted or uncontradicted, which will
support the trial court’s decision.” (Ibid., fn. omitted.) Also, we afford great deference to
the factual conclusions reached by the trial court; ordinarily, conflicting evidence will be
resolved in favor of the judgment. (Denham v. Superior Court (1970) 2 Cal. 3d 557, 564.)
We must defer to the trial court’s conclusions regarding the credibility of the evidence.
“Our role in considering an insufficiency of the evidence claim is quite limited. We do
not reassess the credibility of witnesses [citation], and we review the record in the light
most favorable to the judgment . . . .” (People v. Olguin (1994) 31 Cal. App. 4th 1355,
1382.)
In this case, defendant contends that he could not continue attending counseling
sessions to comply with his probation terms because the sessions were offered on days he
had to work. Defendant discusses at length about the days/times the therapy sessions
were offered and that he could not attend those sessions because of his work schedule.
Defendant claims that he had to work to pay for the therapy sessions. The same
explanations were given at the revocation hearing when defendant testified.
Notwithstanding, the evidence is clear that defendant did not continue with his
counseling session—as required by the terms of his probation. The fact that defendant
had a conflict in his schedule because of his work schedule is irrelevant to this analysis.
Defendant knew he needed to attend his counseling sessions; he did not attend.
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The trial court, before revoking defendant’s probation, stated: “And the record is
replete with the fact that [defendant] has been told numerous times to complete the
program. He came into this court in front of me. I explained to him the necessity of it,
that he would go to jail if he did not complete the program. I gave him another
opportunity [to] get enrolled and described to him the seriousness of it. [¶] He was
granted probation January 4th, 2011. Not only has he only done about four classes total
since January 4th, 2011, but he has paid not one dollar and one [cent], and he owes actual
victim restitution of a thousand dollars. He’s never paid a penny on his case. It appears
that his idea of his case is, ‘I have five years to do something, I’ll get around to it.’”
The court went on to state: “Mr. Pitts, you don’t have to have probation, and so
we’re just going to end it today, because you just don’t get it. People tell you what to do.
You know, Ms. Martin tells you what to do. I’ve told you what to do. Your previous
counselor tells you what to do. [¶] The fact is, you just don’t take it seriously. Your
attitude is like, ‘Whatever, I’ve got a job. Why are you guys bugging me? I can’t get this
done.’ It’s okay, you don’t have to get it done then.”
We agree with the court’s analysis of the evidence. Defendant had ample
opportunity to attend counseling sessions for the privilege of being on probation, instead
of prison. The evidence was sufficient to support the trial court’s conclusion that
defendant violated the terms and conditions of his probation. (People v. Kurey, supra, 88
Cal.App.4th at pp. 848-849).
Next, we address defendant’s IAC claim. In order to establish a claim of IAC,
defendant must demonstrate, “(1) counsel’s performance was deficient in that it fell
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below an objective standard of reasonableness under prevailing professional norms, and
(2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable
probability’ that, but for counsel’s failings, defendant would have obtained a more
favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to
undermine confidence in the outcome. [Citations.]” (People v. Dennis (1998) 17 Cal. 4th
468, 540-541, citing, among other cases, Strickland v. Washington (1984) 466 U.S. 668;
accord, People v. Boyette (2002) 29 Cal. 4th 381, 430.) Hence, an IAC claim has two
components: deficient performance and prejudice. (Strickland, at pp. 687-688, 693-694;
People v. Williams (1997) 16 Cal. 4th 153, 214-215; People v. Davis (1995) 10 Cal. 4th
463, 503; People v. Ledesma (1987) 43 Cal. 3d 171, 217.) If defendant fails to establish
either component, his claim fails.
When a claim of ineffective assistance is made on direct appeal, and the record
does not show the reason for counsel’s challenged actions or omissions, the conviction
must be affirmed unless there could be no satisfactory explanation. (People v. Pope
(1979) 23 Cal. 3d 412, 426.)
In this case, defendant seems to contend that his counsel rendered IAC because
counsel failed to inform defendant about what he needed to do to comply with the
probation conditions, and because counsel failed to inform the court about all the reasons
why he was not attending counseling sessions. We need not determine if defense
counsel’s actions fell below an objective standard of reasonableness because defendant
cannot demonstrate that counsel’s alleged deficient representation prejudiced him, i.e.,
there is a reasonable probability that, but for counsel’s purported failings, defendant
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would have received a more favorable result. (People v. Dennis, supra, 17 Cal.4th at
pp. 540-541; Strickland v. Washington, supra, 466 U.S. at p. 687.)
Here, even if defense counsel allegedly failed to inform defendant about the
importance of complying with his probation conditions, there is ample evidence in the
record to show that both the trial court and the probation department made this
requirement clear to defendant. Hence, there was no prejudicial effect from this alleged
deficient representation. In fact, defendant was given a second chance. When the
probation department filed its first allegation of violation of probation on July 25, 2012,
defendant admitted violating the probation term that he “[p]articipate and complete at
[his] expense any counseling, rehabilitation/treatment program deemed appropriate by the
Probation Officer, and authorize release of information relative to progress.” In the
allegation, the probation officer wrote in detail how he informed defendant what he must
do to comply with the probation terms. Instead of revoking probation and reinstating
defendant’s prison term, as recommended by the probation officer, the court gave
defendant a second chance to comply. At the hearing, the court specifically told
defendant that he had to enroll in counseling classes. Instead of taking advantage of this
second chance, defendant decided that attending counseling classes was not a priority.
As to defendant’s other IAC contention, we find that evidence of alleged
difficulties faced by defendant in scheduling his counseling sessions was presented at the
revocation hearing. The trial court acknowledged defendant’s scheduling conflicts.
However, the court believed that defendant failed to prioritize the importance of
complying with probation terms: “The fact is, you just don’t take it seriously. Your
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attitude is like, ‘Whatever, I’ve got a job. Why are you guys bugging me? I can’t get this
done.’”
Based on the above, we find that defendant cannot demonstrate that counsel’s
alleged deficient representation prejudiced him, i.e., there is a reasonable probability that,
but for counsel’s purported failings, defendant would have received a more favorable
result. (People v. Dennis, supra, 17 Cal.4th at pp. 540-541; Strickland v. Washington,
supra, 466 U.S. at p. 687.)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal. 4th 106, we have
conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
McKINSTER
Acting P. J.
KING
J.
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