People v. Blake CA3 ( 2024 )

Filed 2/27/24 P. v. Blake 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C098981
Plaintiff and Respondent, (Super. Ct. Nos. 19CF01975,
22CF02288)
v.
KELLY MARIE BLAKE,
Defendant and Appellant.
Defendant Kelly Marie Blake pled no contest to possessing drugs in jail (Pen.
Code, § 4573.6, subd. (a)) and was placed on formal probation for a term of five years in
case No. 19CF01975.1 She was charged with additional drug offenses some three years
later in case No. 22CF02288. She pled guilty to transportation or sale of a controlled
substance (Health & Saf. Code, § 11352, subd. (a)) and admitted violating her probation
1 Undesignated statutory references are to the Penal Code.
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in case No. 19CF01975. The trial court denied probation in case No. 22CF02288 and
sentenced defendant to four years in county prison. The trial court then terminated
probation in case No. 19CF01975 and sentenced defendant to county prison for one year,
consecutive to the term imposed in case No. 22CF02288. The trial court also imposed
various fines and fees.
Defendant appeals, raising various claims of sentencing error. She argues the trial
court should have ordered a risk/needs assessment and should have continued the
sentencing hearing so such an assessment could be done. She also argues the trial court
erred in imposing fees and fines without determining her ability to pay. We conclude the
abstract of judgment must be corrected to accurately reflect the number of days
suspended from the sentences in both cases and to reflect the trial court’s oral
pronouncement of judgment. We affirm the judgment.
I. BACKGROUND
A detailed recitation of the facts underlying defendant’s crimes is unnecessary to
our resolution of the issues on appeal. It suffices to say that defendant pled no contest to
possessing drugs in jail (methamphetamine and heroin) in case No. 19CF01975. The trial
court suspended imposition of sentence, placed defendant on formal probation for a term
of five years, and ordered her to successfully complete a drug court program.
Defendant was charged with additional drug offenses in case No. 22CF02288 in
May 2022. (Health & Saf. Code, §§ 11351, 11352, subd. (a), 11378, and 11379.) She
pled guilty to one count of transportation or sale of a controlled substance (Health & Saf.
Code, § 11352, subd. (a)) and admitted violating her probation in case No. 19CF01975.
Defendant, then 45 years old, appeared for sentencing in both cases in June 2023.
The trial court began the hearing by asking whether the parties were ready to proceed
with sentencing. Defense counsel replied: “Yes, [y]our Honor. No legal cause why
judgment and sentence cannot now be pronounced.”
2
The trial court then said it had read and considered the original and supplemental
probation reports in case Nos. 19CF01975 and 22CF02288, respectively, and was
inclined to follow the probation department’s recommendation and impose the middle
term (four years) with mandatory supervision. Defense counsel responded by informing
the trial court that defendant survived an unreported violation of section 261 at the age of
14, some 31 years earlier. In defense counsel’s opinion, the ordeal was the underlying
cause of defendant’s drug use and would best be addressed by probation and residential
treatment. Defense counsel also said that defendant had recently been accepted to a
residential rehabilitation facility. The prosecutor responded that defendant was welcome
to report the violation and could receive treatment as a condition of mandatory
supervision. Indeed, the prosecutor observed, the probation department recommended
precisely such a condition.
Defense counsel then said: “Your Honor, I would ask for a RANT assessment of
Ms. Blake. I think that’s necessary for a proper sentence in this case.”2 The trial court
replied: “Don’t you think it’s a little late? We’re on for sentencing, Mr. [defense
counsel].” Defense counsel responded: “I understand that. I’ve been told the RANT
assessment at this stage is appropriate.” Following further discussion, the trial court
found a factual basis for defendant’s plea and found her in violation of probation. The
trial court denied defendant’s request to continue probation, noting her poor past
performance and inability to comply with reasonable terms and conditions of probation.
The trial court then considered the aggravating and mitigating circumstances
identified in California Rules of Court, rules 4.421 and 4.423.3 The trial court found
several circumstances in aggravation, including defendant’s numerous and increasingly
2 As we shall discuss, the parties agree that the acronym “RANT” stands for “risk and
needs triage,” which appears to be a type of risk assessment tool.
3 All undesignated rule references are to the California Rules of Court.
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serious prior convictions, her prior prison terms, her prior performance on probation, and
the fact that she engaged in conduct indicating a serious danger to society.
The trial court interpreted defense counsel’s reference to defendant’s status as a
survivor of sexual assault at the age of 14 as an invitation to consider her prior
victimization and/or childhood trauma as mitigating circumstances. (See rule
4.423(b)(4)-(5).) The trial court declined the invitation, stating: “As to the reference, I
believe, to mitigating factor, pursuant to . . . section 1170, sub[division] (b), subsection
(6), I have not been provided with any information regarding [defense counsel’s]
reference to any prior trauma suffered by Ms. Blake; therefore, no nexus could be found
because no information was provided.” The trial court found no circumstances in
mitigation.
Although the trial court found several aggravating circumstances and no
mitigating ones, the court was not convinced the upper term would serve the interests of
justice. Accordingly, the trial court denied probation and sentenced defendant to four
years in county prison (the middle term) in case No. 22CF02288. The trial court
terminated probation in case No. 19CF01975 and sentenced defendant to a consecutive
one-year county-prison term, or one third the middle term of three years, with 165 days’
custody credit. The court suspended 730 days of the sentence in case No. 22CF02288,
suspended 200 days of the sentence in case No. 19CF01975, and ordered that the
suspended time be served under mandatory supervision.4 The trial court also imposed
various fees and fines.
4 At the sentencing hearing, the trial court initially suspended 731 days of the sentence in
case No. 22CF02288, and 83 days of the sentence in case No. 19CF01975. However, the
probation department observed the trial court may have aggregated the suspended time,
and the recommended sentence was 730 days suspended in case No. 22CFO2288, and
200 days suspended in case No. 19CF01975. The trial court responded that it would
make the proposed modifications. The abstract of judgment incorrectly shows that the
trial court suspended 731 days of the sentence in case No. 22CF02288, and 83 days of the
4
Defendant appeals.
II. DISCUSSION
A. Due Process
Defendant argues her sentence should be vacated and the matter remanded for
resentencing because the trial court failed to order a “RANT assessment.”5 In the
sentence in case No. 19CF01975. The abstract of judgment must be corrected to reflect
the sentence ultimately imposed. (See People v. Jones (2012) 54 Cal.4th 1, 89 [“When
an abstract of judgment does not reflect the actual sentence imposed in the trial judge’s
verbal pronouncement, this court has the inherent power to correct such clerical error on
appeal, whether on our own motion or upon application of the parties”].)
5 Neither party offers much explanation of the term “RANT assessment.” Defendant
asserts “RANT assessments” are a “well-established tool for drug offenders to
community correctional programs.” However, she offers scant authority for this
proposition, and our own research has revealed only one unpublished, out-of-state case
that so much as mentions “RANT assessments.” (See State v. Lash (Mar. 12, 2018, No.
A17-0725) 2018 Minn. App. Unpub. LEXIS 187 [noting the defendant had been referred
“to probation for a chemical-health assessment and for a ‘RANT (Risk and Needs
Triage)’ ”].)
In the absence of any other authority, defendant refers us to something that appears to
be a press release, which states, in part: “The Risk and Needs Triage (RANT®) tool
yields an immediate and easily understandable report that classifies offenders into one of
four risk/needs quadrants, each with different implications for selecting suitable
correctional decisions by judges, probation and parole officers, attorneys, and other
decision-makers.” (Treatment Research Institute, RANT®: An Evidence Based
Supervision and Clinical Services Recommendation Solution,
<https://www.innovatingjustice.org/sites/default/files/RANTSummaryVlavianos.pdf >
[as of Feb. 26, 2024].) She also provides a link to an abstract of a law review article
describing the results of a more than 12-year old study in which “the Risk and Needs
Triage (RANT)” was found to have “significantly predicted recidivism rates within 12
months of case disposition.” (Marlowe, et al., (2011) 39 Journal of Criminal Justice,
pp. 253-260, as abstracted at U.S. Department of Justice, Office of Justice Programs,
Targeting Dispositions for Drug-Involved Offenders, < https://www.ojp.gov/ncjrs/virtual-
library/abstracts/targeting-dispositions-drug-involved-offenders-field-trial-risk-and> [as
of Feb. 26, 2024).) These authorities, such as they are, may make the marketing case for
“RANT assessments,” but they do not tell us how such an assessment would have
changed the picture before the trial court. What would a “RANT assessment” have told
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absence of such an assessment, defendant says, the trial court had less than complete
information about her circumstances and was unable to make an informed sentencing
choice. From this premise, she reasons the trial court relied on faulty information in
imposing the middle term sentence, and thereby violated her right to due process.
Defendant’s argument lacks merit.
“The sentencing court has broad discretion to determine whether an eligible
defendant is suitable for probation and, if so, under what conditions.” (People v.
Carbajal (1995) 10 Cal.4th 1114, 1120; rule 4.414; see also People v. Carmony (2004)
33 Cal.4th 367, 377 [“a trial court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with it”].) Even so, due
process requires that sentencing hearings be fundamentally fair. (People v. Eckley (2004)
123 Cal.App.4th 1072, 1080 [“Although not all the procedural safeguards required at trial
also apply in a sentencing or probation hearing, such a hearing violates due process if it is
fundamentally unfair”].) “Reliability of the information considered by the court is the
key issue in determining fundamental fairness.” (People v. Arbuckle (1978) 22 Cal.3d
749, 754-755.) “A court’s reliance, in its sentencing and probation decisions, on
factually erroneous sentencing reports or other incorrect or unreliable information can
constitute a denial of due process.” (Eckley, supra, at p. 1080.)
Defendant does not argue anything in the original or supplemental probation
reports was incorrect. Nor does she suggest the trial court relied on erroneous
the trial court that the original and supplemental probation reports did not? Defendant
does not say.
Without knowing what a “RANT assessment” would ordinarily entail, we have
difficulty saying the trial court erred in failing to order one. Nevertheless, we will
assume for the sake of argument that “RANT assessments” are an accepted
risk/assessment tool commonly used by the county probation department.
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information in imposing the middle term. Instead, she argues the reports were unreliable
due to the lack of a risk/needs assessment. Had such an assessment been ordered, she
says, the trial court would have had more complete information about her status as a
survivor of childhood sexual assault and would have been more likely to grant probation
with treatment for substance abuse stemming from childhood trauma. There are several
problems with defendant’s argument.
First, as the People point out, the trial court ordered a risk/assessment in case No.
19CF01975 as part of the original probation report. True, the results of that assessment
do not appear in the report. However, absent an affirmative record to the contrary, we
must presume the probation officer conducted the assessment and considered the results
in preparing the report. (See generally People v. Hall (2019) 39 Cal.App.5th 831, 839
[collecting cases]; and see Evid. Code, § 664 [“It is presumed that official duty has been
regularly performed”].) Nothing in the record suggests the probation department failed to
conduct the assessment as ordered or failed to account for defendant’s circumstances in
recommending a term of imprisonment followed by mandatory supervision in that case.
Second, though defendant observes “ ‘risk assessment tools are now more reliable
than unstructured clinical judgment,’ ” (see People v. Jenkins (2023) 95 Cal.App.5th 142,
158 (Buchanan, J., conc.)) she does not provide any authority suggesting they are
required, or their results required to be reported, for probation reports to be considered
reliable. In re J.C. (2017) 13 Cal.App.5th 1201, on which defendant relies, does not
support this position. There, another panel of this court considered an adjudicated ward’s
challenge to the juvenile court’s commitment order. (Id. at p. 1203.) The court’s opinion
was partially published, and risk assessment tools were discussed in the unpublished
portion. (Ibid.) As one of the court’s introductory paragraphs explained: “In the
unpublished portion of this opinion, we address J.C.’s challenges to his commitment
based on the juvenile court’s errors in committing him before obtaining a risk assessment,
subsequently relying on an inapplicable risk assessment tool, and misstating his
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maximum period of confinement.” (Ibid.) We cannot rely on the unpublished portion of
the J.C. court’s opinion and cannot divine any meritorious argument from a single
sentence in the published portion. Thus, to the extent defendant argues probation reports
must reflect risk assessments or the results of risk assessments to be considered reliable,
we are not persuaded.
Third, we note that neither the probation department nor any risk assessment tool
needs necessarily to have been the last word on defendant’s victim status or childhood
trauma. A statement in mitigation is the proper vehicle to present additional facts to the
court. (§ 1170, subd. (b)(4); People v. Slater (1989) 215 Cal.App.3d 872, 875.)
Defendant could have presented a statement highlighting her circumstances, describing
how they contributed to her substance abuse and criminal conduct, and explaining how
probation and residential treatment would enable her to overcome them. Having failed to
address these issues in a mitigation statement, defendant cannot be heard to complain that
the trial court failed to give the same issues due consideration at the sentencing hearing.
Finally, it bears repeating that the trial court’s imposition of the middle-term
sentence was supported by several circumstances in aggravation, none of which have
been challenged on appeal. Because even a single aggravating circumstance would have
been sufficient to support imposition of the upper term (People v. Ortiz (2012) 208
Cal.App.4th 1354, 1371), several unchallenged ones were sufficient to support the
imposition of the middle term and denial of probation. Defendant’s due process
challenge to her sentence is rejected.
B. Implied Request for Continuance and Ineffective Assistance of Counsel
Defendant argues the trial court erred in denying her implied request to continue
the sentencing hearing so a “RANT assessment” could be done. The People respond, and
we agree, that defendant forfeited the issue by failing to expressly make any such request
in the trial court. (See In re A.B. (2014) 225 Cal.App.4th 1358, 1366 [argument that
juvenile court abused discretion in denying continuance forfeited where mother never
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requested continuance].) But even assuming the issue were properly before us, we would
find no abuse of discretion.
Continuances in criminal cases may be granted only for good cause. (§ 1050,
subd. (e).) We review the trial court’s denial of a motion for a continuance for abuse of
discretion. (People v. Sakarias (2000) 22 Cal.4th 596, 646.) “ ‘ “There are no
mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate
due process. The answer must be found in the circumstances present in every case,
particularly in the reasons presented to the trial judge at the time the request is
denied.” ’ ” (People v. D’Arcy (2010) 48 Cal.4th 257, 287-288.) The party challenging
the denial of a continuance bears the burden of establishing an abuse of discretion.
(People v. Beames (2007) 40 Cal.4th 907, 920.)
“In reviewing the decision to deny a continuance, ‘[o]ne factor to consider is
whether a continuance would be useful.’ ” (People v. Mungia (2008) 44 Cal.4th 1101,
1118.) Here, the trial court could reasonably conclude an open-ended continuance would
not be useful, as the probation department had apparently already conducted a risk/needs
assessment, and defendant had not been diligent in gathering and presenting evidence to
support the claimed need for an additional assessment. (See People v. Pride (1992) 3
Cal.4th 195, 254 [proper for trial court to deny defendant’s motion for a continuance
prior to sentencing hearing to explore mental health issues when defendant had “ample
opportunity” to do so earlier].) The trial court acted well within its broad discretion in
denying the purported request for a continuance.
Defendant also raises a perfunctory claim of ineffective assistance of counsel.
“ ‘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.’ ” (People v. Carter (2005) 36 Cal.4th 1114, 1189.) We presume “ ‘counsel’s
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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. Defendant . . .
bears the burden of establishing constitutionally inadequate assistance of counsel.’ ”
(Ibid.)
Defendant makes no meaningful attempt to carry her burden. She devotes only
two sentences to her ineffective assistance of counsel claim, which do not appear under a
separate heading or subheading (rule 8.204(a)(1)(B)), and do not demonstrate that trial
counsel’s performance fell below an objective standard of reasonableness or that any
such performance prejudiced her as a result. The ineffective assistance claim is rejected.
C. Fines, Fees, and Assessments
Finally, defendant challenges the imposition of various fines, fees, and
assessments in both cases. Specifically, she challenges the imposition of the following
fines, fees, and assessments in case No. 22CF02288: a $300 restitution fee (§ 1202.4,
subd. (b)), a $300 mandatory supervision revocation fine (§ 1202.45, subd. (b)) (which
was stayed), a $30 conviction assessment (Gov. Code, § 70373), and a $40 court
operations assessment (§ 1465.8). She challenges the imposition of the following fines,
fees, and assessments in case No. 19CF01975: a $300 restitution fine (§ 1202.4, subd.
(b)), a $300 mandatory supervision revocation fine (1202.44), a $30 conviction
assessment (Gov. Code, § 70373), a $40 court operations assessment (§ 1465.8), and a
$350 drug court fee (§ 1203.1b). Defendant’s challenge to the fines, fees, and
assessments imposed in both cases lacks merit.
Relying principally on People v. Duenas (2019) 30 Cal.App.5th 1157, defendant
argues the trial court violated her constitutional rights by imposing the foregoing fines,
fees, and assessments without determining her ability to pay. However, defendant
appeared for sentencing in June 2023, more than four years after the potential sea change
brought about by Duenas. Although Duenas was well known by then, defendant neither
objected to the imposition of any fine, fee, or assessment, nor requested an ability-to-pay
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hearing. Under the circumstances, we conclude her Duenas challenge has been forfeited.
(People v. Scott (1994) 9 Cal.4th 331, 351.)
Anticipating forfeiture, defendant argues—again, in perfunctory fashion—that her
trial counsel rendered ineffective assistance by failing to object to the imposition of the
foregoing fines, fees, and assessments without determining her ability to pay. As before,
she makes no meaningful attempt to carry her burden of showing ineffective assistance of
counsel. The claim is rejected.
III. DISPOSITION
The trial court is directed to correct the abstract of judgment to correctly reflect
that 730 days of the sentence were suspended in case No. 22CF02288, and 200 days of
the sentence were suspended in case No. 19CF01975, and to forward a copy of the
corrected abstract of judgment to the Department of Corrections and Rehabilitation. The
judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
HULL, Acting P. J.
/S/
MAURO, J.
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