People v. Evans CA2/7 ( 2021 )

Filed 3/17/21 P. v. Evans CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B299953
Plaintiff and Respondent,
(Los Angeles County
Super. Ct. No. NA071649)
v.
KEVIN EVANS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Daniel J. Lowenthal, Judge. Affirmed.
Cindy Brines, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, David E. Madeo, Acting Supervising
Deputy Attorney General, and Thomas C. Hsieh, Deputy Attorney
General, for Plaintiff and Respondent.
INTRODUCTION
Kevin Evans pleaded no contest in 2006 to inflicting corporal
injury on his wife. The trial court placed him on formal probation
for five years. Evans did not comply with his probation conditions
and left California in 2009. In 2019, following a contested
probation violation hearing, the trial court found Evans had
violated probation, terminated Evans’s probation, and sentenced
Evans to three years in state prison.
Evans contends that the trial court erred by allegedly failing
to provide a statement of reasons for its decision to sentence Evans
to state prison. Evans also argues his counsel rendered ineffective
assistance by failing to object to the trial court’s alleged failure to
state its reasons for sentencing Evans to prison. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Evans’s No Contest Plea and Grant of Probation
On September 13, 2006 Evans punched his pregnant wife
five to six times in the head and once in her face. She suffered a
fractured mandible.
On September 29, 2006 Evans pleaded no contest to one
count of corporal injury to spouse or cohabitant. (Pen. Code,
§ 273.5, subd. (a).) The trial court suspended imposition of
sentence and placed Evans on formal probation for five years with
several conditions.
On February 2, 2009 the probation department filed a report
recommending Evans’s probation be revoked and the court issue a
bench warrant. Evans had moved to Las Vegas in January 2009,
despite instructions from his probation officer to remain in Los
Angeles County until his interstate compact transfer had been
processed. The transfer had been previously denied because
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Evans had not complied with his probation conditions. Evans had
also been arrested in August 2007 in Las Vegas for domestic
violence battery. The trial court revoked Evans’s probation and
issued a “no bail” bench warrant.
B. The Probation Violation Hearing
On May 15, 2019, after Evans surrendered to California
authorities, the trial court recalled Evans’s bench warrant,
scheduled a probation violation hearing, and ordered a
supplemental probation report. The trial court received the
supplemental probation report on June 5, 2019.
The report stated that Evans had been arrested and
convicted of several offenses in Las Vegas between 2010 and 2018,
and that Evans had not complied with other probation conditions.
The report recommended that the court find Evans in violation of
probation, that probation remain revoked, and that the court
sentence Evans to prison. Alternatively, the report recommended
that if the court reinstated Evans’s probation, the court order
Evans to report to the Long Beach probation office.
The court held a contested probation violation hearing on
July 18, 2019. At the outset of the hearing, the trial court stated
that it had already provided an indicated midterm sentence of
three years, which Evans “did not want to accept, and we set it for
[a] probation violation hearing.” Defense counsel argued that the
court should reinstate Evans’s probation or terminate probation.
Defense counsel stated that Evans would not accept “the People’s
offer or the court’s indicated.”
The People called probation officer Rosalva Lugo to testify.
Lugo testified that she had supervised Evans’s probation in 2008
and 2009, but that she lost contact with Evans in January 2009
because Evans moved to Las Vegas. Lugo testified that she
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instructed Evans to remain in Los Angeles County until a transfer
of his probation had been accepted or rejected, but Evans
nevertheless left Los Angeles County. Lugo testified that either
she or her supervisor directed Evans to return to California and to
contact the probation department, but Evans did not return.
Based on Evans’s failure to return to California, Lugo
requested a bench warrant for Evans in January 2009. Lugo had
not seen Evans since 2009. Lugo stated that Evans never provided
her with proof that he had completed the domestic violence
counseling and community service that had been ordered as part
of his probation.
Following Lugo’s testimony, the People introduced a certified
copy of Evans’s “rap sheet,” which showed Evans’s convictions in
Las Vegas from 2010 to 2018.1
Evans did not present any evidence. Defense counsel argued
the rap sheet did not include any convictions for offenses that
occurred during Evans’s probationary period of 2006 through 2011.
The trial court observed that the rap sheet included a 2010
domestic violence conviction in Las Vegas; defense counsel argued
that the rap sheet did not state whether the offense occurred
during Evans’s probationary period. Defense counsel also argued
that Evans had self-surrendered on the bench warrant in 2019,
and that, despite “numerous contacts with law enforcement while
in Las Vegas,” the authorities never sought to extradite Evans to
California. Defense counsel asserted that Evans was “an entirely
different person” in 2019 than he had been in 2006 and 2009.
1 The record does not contain a copy of the rap sheet the
People introduced into evidence.
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Following defense counsel’s argument, the trial court found
Evans in violation of probation, terminated Evans’s probation, and
sentenced Evans to three years in state prison. The court stated:
Evans “was placed on probation for a serious
domestic violence conviction. He was ordered to
report to probation, comply with probation, orders,
rules, and regulations, complete domestic violence
counseling, complete CalTrans, and he did none of
that. He left the jurisdiction. He doesn’t get credit
for the fact the jurisdiction to which he fled didn’t
extradite him.
The court does find him in violation of probation, and
imposes the midterm of three years prison. The
sentence will be forthwith.”
Evans timely appealed.
DISCUSSION
A. Standard of Review
After finding that a defendant has violated probation, a trial
court may either reinstate probation on the same or modified
terms, or terminate probation and order the defendant committed
to prison “if the interests of justice so require.” (Pen. Code,
§ 1203.2, subd. (b); People v. Medina (2001) 89 Cal. App. 4th 318,
321; People v. Harris (1990) 226 Cal. App. 3d 141, 147.) The trial
court is vested with broad discretion in determining whether to
reinstate or revoke probation, and its order is reviewed for abuse
of discretion. (People v. Weaver (2007) 149 Cal. App. 4th 1301, 1311,
disapproved on another ground in People v. Cook (2015) 60 Cal. 4th
922, 939.)
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B. The Trial Court Adequately Stated Its Reasons for
Sentencing Evans to State Prison Rather Than Reinstating
Probation
Evans contends the trial court erred by allegedly failing to
state reasons for denying Evans probation and instead imposing a
state prison sentence. The record does not support Evans’s claim.
Where a court originally suspended the imposition of
sentence and placed a defendant on probation, a subsequent
sentence to state prison upon revocation of probation is a
sentencing choice requiring a statement of reasons. (Cal. Rules of
Court, rule 4.406(b)(2).) “[T]he record must clearly reflect the trial
court understands that two separate and distinct decisions are
involved: (1) to revoke [probation]; and (2) to sentence to state
prison rather than to place on probation on new or modified
conditions.” (People v. Hawthorne (1991) 226 Cal. App. 3d 789, 795
(Hawthorne).)
As an initial matter, Evans did not object at the probation
hearing that the trial court had not stated sufficient reasons for its
decision. Although defense counsel argued that the court should
reinstate Evans’s probation or terminate probation, counsel did
not object that the court had not adequately stated its reasons for
declining to grant probation and instead imposing a state prison
term. Evans thus forfeited this claim. (People v. Scott (1994) 9
Cal. 4th 331, 353-357 [holding that “complaints about the manner
in which the trial court exercises its sentencing discretion and
articulates its supporting reasons cannot be raised for the first
time on appeal”].)
Furthermore, the record reflects that the trial court
understood the “two separate and distinct decisions” (Hawthorne,
supra, 226 Cal.App.3d at p. 795) to be made at Evans’s probation
hearing. The supplemental probation report, which the trial court
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expressly acknowledged receiving, addressed the probation
violation and the sentencing decision separately. At the outset of
the probation hearing, the court stated that it had provided Evans
with an indicated sentence. Evans’s counsel responded by asking
the court to release Evans and either reinstate his probation or
terminate it. Following Lugo’s testimony and the introduction of
Evans’s rap sheet, the trial court made specific findings that
Evans had performed poorly on probation and that Evans had fled
the jurisdiction. Based on these findings, the court made two
separate decisions; first, that Evans had violated probation, and
second, that Evans would be sentenced to three years in state
prison. The court’s comments throughout the hearing make clear
that it understood the difference between revoking Evans’s
probation and sentencing him to state prison rather than
reinstating probation.
Evans argues that the court’s findings pertained only to his
probation violation, and that the court did not state any reasons
for imposing a prison sentence rather than reinstating probation.
Findings that Evans had performed poorly on probation, had fled
the jurisdiction, and had remained at large for 10 years are
reasons not to place Evans on probation again and instead
sentence him to prison. (See Hawthorne, supra, 226 Cal.App.3d at
p. 795 [violation of probation terms “does not automatically trigger
both revocation of probation and imprisonment,” but “[i]t may well
be in most cases that a trial court’s decision on both scores is
motivated by the defendant’s poor performance on probation”].)
Moreover, before the court made its ruling, defense counsel argued
that Evans was “an entirely different person” than he had been in
the past. An argument that Evans was “not the same person” is
an argument against a future prison term, not a past probation
violation.
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Evans also has not demonstrated a reasonable probability of
a better result on remand. (People v. Watson (1956) 46 Cal. 2d 818,
836.) A remand for resentencing is not required unless there is a
reasonable probability that a different result will ensue. (See
People v. Mobley (1983) 139 Cal. App. 3d 320, 324-325; People v.
Kellett (1982) 134 Cal. App. 3d 949, 962-963.) Evans has not
demonstrated that the trial court would have reinstated probation
on modified terms if Evans had asked for more reasons supporting
the decision to sentence him to prison, or that the court would rule
differently on remand.
C. Evans Has Not Demonstrated That His Counsel Rendered
Ineffective Assistance
Evans also argues his counsel rendered ineffective
assistance because counsel did not object to the trial court’s
alleged failure to state its reasons for sentencing Evans to prison.
This argument is not persuasive.
In assessing claims of ineffective assistance of trial counsel,
we consider whether counsel’s representation fell below an
objective standard of reasonableness under prevailing professional
norms and whether the defendant suffered prejudice to a
reasonable probability, that is, a probability sufficient to
undermine confidence in the outcome. (Strickland v. Washington
(1984) 466 U.S. 668, 693-694; People v. Ledesma (1987) 43 Cal. 3d
171, 216-218.) A reviewing court will indulge in a presumption
that counsel’s performance fell within the wide range of
professional competence and that counsel’s actions and inactions
can be explained as a matter of sound trial strategy. (Strickland,
at p. 689; In re Andrews (2002) 28 Cal. 4th 1234, 1253-1254.) The
defendant bears the burden of establishing constitutionally
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inadequate assistance of counsel. (Strickland, at p. 687; In re
Andrews, at p. 1253.)
Evans has not presented “affirmative evidence that counsel
could have had ‘no rational tactical purpose’” for not asking the
trial court to state further reasons for its decision to impose a
prison term. (People v. Mickel (2016) 2 Cal. 5th 181, 198.) As
discussed, after the presentation of evidence and argument, the
trial court stated specific reasons for finding Evans in violation of
probation and sentencing him to prison. Defense counsel may well
have concluded that the trial court’s statement adequately
explained the court’s reasons for its decision.
Even if Evans could establish deficient performance by his
counsel, however, he cannot demonstrate a reasonable probability
that an objection to the trial court’s alleged failure to state reasons
for its sentencing decision would have resulted in a different
outcome. (People v. Mattson (1990) 50 Cal. 3d 826, 876; People v.
Gonzalez (1998) 64 Cal. App. 4th 432, 438.) The court held a
contested probation violation hearing at which it took evidence
and heard argument from Evans’s counsel. The court thereafter
made specific factual findings about Evans’s poor performance on
probation and absconding from Los Angeles County. There is no
reasonable probability that requesting additional reasons would
have resulted in a different outcome. Evans has not demonstrated
that his counsel rendered ineffective assistance.2
2 Evans also argues his counsel should have “argu[ed] for
probation,” and rendered ineffective assistance by failing to do so.
Defense counsel expressly argued that “[e]ither the court [should]
reinstate [Evans’s] probation or terminate probation.” The trial
court’s decision not to do so does not constitute ineffective
assistance by Evans’s counsel.
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DISPOSITION
The judgment is affirmed.
MCCORMICK, J.
We concur:
PERLUSS, P. J.
SEGAL, J.

Judge of the Orange County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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