People v. Rodriguez CA3

Filed 10/29/20 P. v. Rodriguez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Siskiyou)
----
THE PEOPLE, C090323
Plaintiff and Respondent, (Super. Ct. No.
SCCR-CRF-2017-1351)
v.
CHERYL LYNN RODRIGUEZ,
Defendant and Appellant.
Defendant Cheryl Lynn Rodriguez pleaded guilty to felony resisting an executive
officer, misdemeanor resisting a peace officer, and misdemeanor assault. After defendant
violated the terms of her probation and supervision was terminated, the trial court
imposed the upper term sentence of three years on the first count for felony resisting an
executive officer. On appeal, defendant contends (1) she received ineffective assistance
of counsel because her counsel failed to object to imposition of the probation revocation
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restitution fine; and (2) she received ineffective assistance of counsel because her counsel
failed to object to the court’s imposition of the upper term. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A deputy with the Siskiyou County Sheriff’s Office was dispatched to assist
firefighters at a residence. He was advised that defendant had an outstanding
misdemeanor warrant. When he arrived, he was advised a belligerent female was inside
the residence. He looked through the open door and observed defendant sitting on a
couch speaking on a cell phone. The deputy directed defendant to get up from the couch
approximately five times. She ignored the directives, and the deputy took hold of her left
arm and informed her she was under arrest. Defendant screamed and resisted the
deputy’s efforts in placing the defendant in handcuffs and attempted to strike the deputy
with her elbow.
Defendant was charged with two counts of felony resisting an executive officer
(Pen. Code, § 69; counts 1 & 2),1 one count of misdemeanor assault (§ 240; count 3), and
two counts of misdemeanor trespassing (§ 602, subd. (m); counts 4 & 5). Count 2 was
amended to charge defendant with misdemeanor resisting a peace officer (§ 148, subd.
(a)(1)). Defendant then pleaded guilty to counts 1 through 3. Following the plea,
defendant was placed on deferred entry of judgment (DEJ) status for three years as to
count 1 and informal probation for three years as to counts 2 and 3. The remaining
counts were dismissed.
Some time later, the district attorney filed a notice of violation of the conditions of
defendant’s DEJ status. The trial court found defendant in violation of DEJ as to count 1
and revoked her probation as to counts 2 and 3. As part of a negotiated disposition, the
court suspended imposition of sentence and placed defendant on three years’ formal
1 Undesignated statutory references are to the Penal Code.
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probation. The court also ordered defendant to pay a $300 restitution fine (§ 1202.4,
subds. (b)(1) & (m)) and a $300 probation revocation restitution fine (§ 1202.44), the
latter of which was suspended pending successful completion of probation.
Three successive petitions to revoke defendant’s probation based on various
violations were filed. Following a contested hearing, the trial court found defendant in
violation of the terms of her probation. On August 27, 2019, the court terminated
defendant’s probation and sentenced her to county jail for the upper term of three years
on count 1 with no mandatory supervision in accordance with section 1170, subdivision
(h)(5)(A). The court found mandatory supervision was not appropriate because “the
circumstances of the case and the circumstances of defendant’s past performance on
supervision substantially outweigh the benefits of supervision and promoting public
safety and the defendant’s successful reentry into the community upon release from
custody.” The court noted it had reviewed the circumstances “carefully” in deciding to
impose a term of three years without a period of mandatory supervision.2 Further, the
trial court executed the previously suspended $300 probation revocation restitution fine
(§ 1202.44). Defense counsel did not object to the imposition of the upper term or the
execution of the probation revocation restitution fine.
Defendant filed a timely notice of appeal.
2 Before sentencing, the probation department filed a supplemental report
recommending the upper term sentence of three years. The trial court read and
considered the supplemental report in addition to a memorandum regarding defendant’s
then most recent failure to appear, in which the probation department explained that
defendant was not receptive to the department’s rehabilitation efforts and was unwilling
to comply with her conditions of release on probation.
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DISCUSSION
Defendant contends her counsel was ineffective in failing to object to execution of
the probation revocation restitution fine and failing to object to the court’s imposition of
the upper term. We disagree.
To establish ineffective assistance, a defendant must show (1) counsel’s
performance fell below an objective standard of reasonableness under prevailing
professional norms, and (2) the deficient performance prejudiced the defendant.
(Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694 [80 L. Ed. 2d 674, 693-
694, 697-698]; People v. Ledesma (1987) 43 Cal. 3d 171, 216-218.)
In measuring counsel’s performance, judicial review is highly deferential.
(Strickland v. Washington, supra, 466 U.S. at p. 689; In re Andrews (2002) 28 Cal. 4th
1234, 1253.) There is a presumption that counsel acted within the wide range of
reasonable professional assistance. (People v. Mai (2013) 57 Cal. 4th 986, 1009.) When
the strategic reasons for challenged decisions are not apparent from the record, we will
not find ineffective assistance of counsel unless there could have been “ ‘ “no
conceivable tactical purpose” ’ ” for counsel’s acts or omissions. (People v. Earp (1999)
20 Cal. 4th 826, 896; see People v. Arce (2014) 226 Cal. App. 4th 924, 930-931.)
I
Failure to Object to Probation Revocation Restitution Fine
Defendant argues she suffered ineffective assistance because her counsel failed to
object based on defendant’s inability to pay under People v. Dueñas (2019)
30 Cal. App. 5th 1157 (Dueñas) at sentencing when the trial court executed the previously
suspended probation revocation restitution fine. Dueñas was decided seven months
before defendant’s sentencing hearing. The People contend that any objection would
have been futile and defendant was not prejudiced.
Section 1202.4, subdivision (b) provides for the imposition of a restitution fine of
at least $300 upon a felony conviction unless the court finds “compelling and
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extraordinary reasons” for not imposing it. Section 1202.4, subdivision (c) specifies that
a defendant’s inability to pay “shall not be considered a compelling and extraordinary
reason not to impose a restitution fine” and that such inability to pay may only be
considered in increasing the amount of the fine in excess of the minimum $300 amount.
Pursuant to section 1202.44, in addition to the restitution fine, in every case in which a
person suffers a felony conviction and is placed on probation, the court shall impose an
additional probation revocation restitution fine in the same amount as the fine imposed
under section 1202.4, subdivision (b). Section 1202.44 also provides that the probation
revocation restitution fine “shall not be waived or reduced by the court, absent
compelling and extraordinary reasons.”
We conclude that defendant’s argument is without merit. Defendant’s appeal
hinges on the analysis in Dueñas finding an ability to pay hearing is required before
imposing fines and fees, and we are not persuaded that this analysis is correct. Our
Supreme Court is now poised to resolve this question, having granted review in People v.
Kopp (2019) 38 Cal. App. 5th 47, review granted November 13, 2019, S257844, which
agreed with the court’s conclusion in Dueñas that due process requires the trial court to
conduct an ability to pay hearing and ascertain a defendant’s ability to pay before it
imposes court operations and court facilities assessments under section 1465.8 and
Government Code section 70373, but not restitution fines under section 1202.4. (Kopp,
supra, at pp. 95-96.)
In the meantime, we join several other courts in concluding that principles of due
process do not require determination of a defendant’s present ability to pay before
imposing the fines and assessments at issue in Dueñas or the probation revocation
restitution fine at issue here. (People v. Cota (2020) 45 Cal. App. 5th 786, 794-795;
People v. Kingston (2019) 41 Cal. App. 5th 272, 279; People v. Hicks (2019)
40 Cal. App. 5th 320, 329, review granted Nov. 26, 2019, S258946; People v. Aviles
(2019) 39 Cal. App. 5th 1055, 1069; People v. Caceres (2019) 39 Cal. App. 5th 917, 928.)
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Defendant’s claim pursuant to Dueñas is without merit, invalidating her ineffective
assistance of counsel claim on this issue. (People v. Kipp (1998) 18 Cal. 4th 349, 377
[reasoning that counsel’s failure to assert a meritless position does not demonstrate
ineffective assistance of counsel].)
II
Failure to Object to Upper Term Sentence
Defendant also contends that her counsel was ineffective in failing to object to the
trial court’s imposition of the upper term because the court did not state its reasons for
imposing the upper term. The People argue that “[c]ounsel’s performance was not
deficient for failing to object because the trial court sufficiently stated its reasons for
imposing the upper term.” We agree. We further conclude defendant’s ineffective
assistance claim fails because she has not established prejudice.
Section 1170, subdivision (b) requires a trial court selecting between three
possible terms to “select the term which, in the court’s discretion, best serves the interests
of justice [and] set forth on the record the reasons for imposing the term selected.”
(§ 1170, subd. (b); see Cal. Rules of Court, rules 4.406(b)(4) & 4.420(e).) A single
circumstance in aggravation is sufficient to impose an upper term. (People v. Osband
(1996) 13 Cal. 4th 622, 728.) When giving the reasons for the sentencing choice, the
court must “state in simple language the primary factor or factors that support the
exercise of discretion.” (Cal. Rules of Court, rule 4.406(a); see People v. Sandoval
(2007) 41 Cal. 4th 825, 850-851.) However, the court “is not required to identify
aggravating and mitigating factors, apply a preponderance of the evidence standard, or
specify the ‘ultimate facts’ that ‘justify[] the term selected.’ ” (Sandoval, supra, at
pp. 850-851.) “The court may give a single statement explaining the reason or reasons
for imposing a particular sentence or the exercise of judicial discretion, if the statement
identifies the sentencing choices where discretion is exercised and there is no
impermissible dual use of facts.” (Cal. Rules of Court, rule 4.406(a).) Use of the same
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factor to deny mandatory supervision and to impose the upper term does not violate the
prohibitions against dual use of facts. (See § 1170, subd. (b).) “[T]he presence of one
aggravating circumstance renders it lawful for the trial court to impose an upper term
sentence.” (People v. Black (2007) 41 Cal. 4th 799, 815.)
On this record, it is not reasonably probable that a lower sentence would have
been imposed if defense counsel had objected. The trial court stated that it had carefully
reviewed the circumstances of the case and noted defendant’s poor prior performance
under supervision as a circumstance supporting its decision to deny mandatory
supervision and impose the upper term. This was an aggravating factor (Cal. Rules of
Court, rule 4.421(b)(5) [“The defendant’s prior performance on probation, mandatory
supervision, postrelease community supervision, or parole was unsatisfactory”]).
Because the court stated one aggravating circumstance warranting imposition of the
upper term (see People v. Black, supra, 41 Cal.4th at p. 815), any objection by defense
counsel would have been futile. Further, defendant’s argument that she was prejudiced
because it is more likely than not she would have received a “more favorable sentence
had counsel informed the trial court that it had failed to state its reasons for imposing the
upper term” is conclusory and speculative. The court identified at least one aggravating
circumstance on the record, which was sufficient to warrant imposition of the upper term.
Further, the court did not cite any factors in mitigation, nor did the probation department
identify any in its initial probation report. Defendant does not attempt to explain what
factors defense counsel might have argued to the court to persuade it to impose the
middle or lower term. Accordingly, she has not demonstrated prejudice and we must
reject her claim that she received ineffective assistance of counsel.
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DISPOSITION
The judgment is affirmed.
KRAUSE , J.
We concur:
RAYE , P. J.
BLEASE , J.
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