Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Madera County. Super. Ct. No. MCR021966. John W. DeGroot, Judge.
Julia L. Bancroft, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
Larry Michael Urias (appellant) pled no contest to one count of heroin possession (Health & Saf. Code, § 11350, subd. (a)), and admitted that he had served three prior prison terms (Pen. Code, § 667.5, subd. (b)), and had one prior strike conviction (Pen. Code, § 667, subds. (b)-(i)). In exchange, the trial court placed appellant on Proposition 36 probation. After appellant violated probation on various occasions, the trial court sentenced appellant to the upper term of six years in prison, plus three years for the three prior prison terms, and imposed various fees and fines.
On appeal, appellant contends: (1) that the upper term imposed violated Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham); (2) that trial counsel was ineffective; (3) that the trial court abused its discretion when it denied his Marsden motion; (4) that the trial court abused its discretion when it denied his Romero motion; (5) that the trial court erred when it denied his request for California Rehabilitation Center (CRC) treatment; (6) that the cause must be remanded to correct the abstract of judgment; and (7) that there was cumulative error. We agree only with appellant’s contention that the cause must be remanded to correct the abstract of judgment, and in all other respects affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
FACTUAL AND PROCEDURAL SUMMARY
During a June 10, 2005, traffic stop, an officer found heroin in appellant’s front pants pocket. Thereafter, appellant was charged with possession of heroin, and it was alleged that he had three prior prison terms and one prior strike. Appellant pled no contest to the count and admitted the allegations. On October 3, 2005, the trial court suspended imposition of sentence, imposed felony probation for a term of three years under Proposition 36, imposed various terms and conditions of probation, and imposed various fines and fees.
In December of 2005, a probation officer alleged appellant violated two terms of his probation. On February 6, 2006, appellant admitted a drug-related violation of probation. The court ordered appellant to enter a one-year in-patient drug treatment program, revoked and reinstituted probation for a period of five years from the original date of October 3, 2005, and discharged appellant on Proposition 36 probation.
On April 13, 2006, the probation officer again alleged that appellant had violated conditions of his probation in that (1) he did not notify his probation officer that he had moved, (2) he failed to report to the probation officer for a scheduled appointment, and (3) he tested positive for opiates on March 8 and 15. A second amended allegation included the claim that appellant had missed a court date as well.
On June 12, 2006, appellant admitted violating probation by driving on a suspended license on May 11, 2006, and by possessing drug paraphernalia on April 20, 2006. The trial court revoked probation and reinstated it for a term of five years and ordered appellant to serve 90 days in jail, with credit for five days in custody.
The record does not contain a petition that alleges these violations, although they are clear from the reporter’s transcript.
A hearing was held August 4, 2006, on the April 2006 alleged violations of probation. Following testimony, the trial court found appellant failed to appear for his probation appointment on March 22, and that he moved from his residence without notifying probation within 24 hours—both non-drug-related violations of probation. The court also found appellant tested positive for drugs on March 8 and 15, and failed to appear for his April 3 drug court review, which the court found was appellant’s “second drug related violation of probation.” The trial court thereafter revoked probation, sentenced appellant to a total term of nine years, with 481 days’ credit, and imposed various fines and fees.
Discussion
1. Did the trial court err when it imposed the upper term?
The trial court sentenced appellant to nine years in state prison, consisting of the upper term of three years, doubled pursuant to the three strikes law, plus 3 one-year terms for prior convictions. Relying on Cunningham, supra, 549 U.S.__ [127 S.Ct. 856], Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), appellant contends the trial court violated his right to trial by jury and to due process under the Sixth and Fourteenth Amendments to the United States Constitution. We disagree.
As a threshold matter, we address the People’s contention that appellant is precluded from challenging his sentence because it was a negotiated component of his plea agreement.
“The rule that defendants may challenge an unauthorized sentence on appeal even if they failed to object below is itself subject to an exception: Where the defendants have pleaded guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction. The rationale behind this policy is that defendants who have received the benefit of their bargain should not be allowed to trifle with the courts by attempting to better the bargain through the appellate process.” (People v. Hester (2000) 22 Cal.4th 290, 295.)
Appellant contends that, although he signed a change of plea form, the form indicated a minimum exposure time of six years and no maximum amount of exposure. But we note that the court explained, when taking appellant’s plea, that although “you have 6 years here but with 3 prison priors it’s going to be 9 years.” When asked if appellant understood that, he replied, “Yes, I understand it.” The court then reiterated, “With your record achievement you would get 9 years if you violated probation and were sentenced to the State Prison. Do you understand that?” Appellant again replied, “Yes, Your Honor.”
Appellant contends that the maximum amount of nine years was unclear in that the court, immediately after the above mentioned exchange, said to appellant, “You could probably work a deal for a lot less if you wanted to, but that’s up to you” and “[T]he problem is, you’re at risk, quite frankly, violating probation and you could end up in State Prison for 9 years.” (Italics added.) But both of these comments were made in the context of discussing appellant’s ongoing drug addiction and questioning whether he thought he could follow through on the Proposition 36 treatment.
In any event, we find no Cunningham violation in the trial court’s imposition of the upper term. In Cunningham, the Supreme Court reaffirmed Apprendi, Blakely, and United States v. Booker (2005) 543 U.S. 220, but overruled People v. Black (2005) 35 Cal.4th 1238 (Black I) and held California’s determinate sentencing law violates a defendant’s constitutional right to a jury trial to the extent it authorizes the trial judge to find facts that expose a defendant to an upper term sentence by a preponderance of the evidence. “This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at pp. 863-864].)
The United State Supreme Court has recognized two exceptions to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jury’s verdict. (Blakely, supra, 542 U.S. at p. 303.) Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (Id. at p. 301; see Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224.)
At the sentencing hearing, the trial court stated that it had considered the report and recommendation of the probation officer and, although it had discretion to strike appellant’s prior strike, it did not do so because of appellant’s “long record.” As noted by the trial court, “even after receiving the strike, he continue[d] to commit new offenses and violate probation and parole.” The trial court found appellant’s drug problem, which stretched back to when appellant was a juvenile in the 1960’s, to be “unevaded and untreatable.”
The trial court then revoked appellant’s probation and sentenced him to the aggravated term of six years plus 3 one-year terms for prison priors for reasons it stated were “obvious”: appellant’s prior convictions were numerous, he served a prior prison term that was not utilized as an enhancement, he was on parole when the crime was committed, and his prior performance on probation and parole was unsatisfactory. The court found in mitigation that appellant completed two prior grants of summary probation, from 1972 through 1974 and 1991 through 1994, but found the factors in aggravation outweighed those in mitigation.
We find the trial court relied, and properly so, on appellant’s prior criminal history in imposing the upper term. Appellant’s criminal history is quite lengthy and dates back to the beginning of 1969. It consists of some 20 plus offenses and numerous violations of probation and parole. The probation report lists four juvenile adjudications, two each for burglary and possession of toluene or a similar substance. As an adult, appellant had a number of Vehicle Code violations, as well as petty theft, theft, possession of various drugs, false representation to a police officer, second degree burglary, and disorderly conduct violations. Aside from the prior prison terms used as enhancements, appellant had an additional prior prison term in 1985 which could be considered for purposes of imposing the upper term. (See Cal. Rules of Court, rule 4.420(c).) In addition, appellant waived a jury determination on the truth of the allegation that he had suffered a prior strike conviction, a first degree burglary in 1991.
Prior to the decision in Cunningham, the prior conviction exception to Apprendi and Blakely was construed broadly by California appellate courts to apply not only to the fact of prior convictions but also to other issues relating to a defendant’s recidivism, including the defendant’s status as a probationer or parolee at the time the current offense was committed and the existence of “numerous” or increasingly serious prior convictions. (People v. Thomas (2001) 91 Cal.App.4th 212, 221-222 [“courts have held that no jury trial right exists on matters involving the more broadly framed issue of ‘recidivism’”]; People v. McGee (2006) 38 Cal.4th 682, 706-707 [“numerous state and federal court decisions have interpreted the Almendarez-Torres exception more broadly than defendant urges here, and have concluded that Apprendi does not preclude a court from making sentencing determinations related to a defendant’s recidivism”].) The reasoning of Thomas and McGee was recently reaffirmed in People v. Black (2007) 41 Cal.4th 799, 819-820 (Black II), by which we, of course, are bound. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Appellant’s prior criminal history was therefore an aggravating circumstance correctly relied upon by the trial court in sentencing appellant to the upper term. And as stated most recently in Black II:
“[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial. [¶] … [¶] Accordingly, so long as the defendant is eligible for the upper term by virtue of the facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black II, supra, 41 Cal.4th at pp. 812-813.)
In summary, since appellant’s criminal history established an aggravating circumstance “that independently satis[fied] Sixth Amendment requirements and render[ed] him eligible for the upper term,” “he was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence ….” (Black II, supra, 41 Cal.4th at p. 820.) Therefore, there was no federal constitutional error. (Cf. People v. Sandoval (2007) 41 Cal.4th 825, 839 [6th Amend. rights violated by imposition of upper term sentence where no aggravating circumstances cited by trial court fell within Blakely exceptions of fact of prior convictions or facts established by jury’s verdict or admitted by defendant].)
2. Did appellant receive ineffective assistance of counsel?
Appellant contends he was denied effective assistance of counsel when, during the probation revocation hearing, counsel did not present evidence of “appellant’s medical issues, act as a strong advocate on appellant’s behalf, or make any argument whatsoever in appellant’s defense.” We find no prejudice and disagree.
In order to place appellant’s argument in context, we first set out the law governing revocation of Proposition 36 probation. Where a defendant receives probation pursuant to Penal Code section 1210.1, the defendant can have probation revoked only in accordance with the terms of the statutory scheme. When the defendant’s violations of probation are only for drug-related reasons, probation must have been revoked three times before the court has discretion to sentence a defendant to prison. (People v. Tanner (2005) 129 Cal.App.4th 223, 234-237.) Exceptions to the statutory scheme set forth in section 1210.1 occur where a defendant refuses drug treatment and where a defendant violates a non-drug related condition of probation. In such cases, the trial court has discretion under section 1210.1 to deny reinstatement of Proposition 36 probation. (People v. Johnson (2003) 114 Cal.App.4th 284, 300, 303-305; see also People v. Guzman (2003) 109 Cal.App.4th 341, 348.) The trial court here found appellant violated non-drug related conditions of probation by failing to appear for an appointment with his probation officer and failing to notify his probation officer of his change in residence.
To prevail on a claim of ineffective assistance of counsel, appellant must show “counsel’s representation fell below an objective standard of reasonableness,” and “the deficient performance prejudiced the defense.” (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Further, “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” (Id. at p. 697.) “Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.]” (People v. Sanchez (1995) 12 Cal.4th 1, 41.)
If an attorney’s performance is so utterly deficient that it “fails to subject the prosecution’s case to meaningful adversarial testing,” prejudice will be presumed. (United States v. Cronic (1984) 466 U.S. 648, 659.) But “the Sixth Amendment does not require that counsel do what is impossible or unethical. If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade.” (Id. at p. 656, fn. 19.)
A reviewing court will not second-guess counsel’s reasonable tactical decisions. (People v. Riel (2000) 22 Cal.4th 1153, 1185.) Moreover, it is well-settled that trial counsel is not required to make tactical decisions, undertake futile acts, or file meritless motions simply to withstand later claims of ineffective assistance. (People v. Anderson (2001) 25 Cal.4th 543, 587; People v. Hines (1997) 15 Cal.4th 997, 1038, fn. 5.)
Here, at the August 4, 2006, hearing, Probation Officer Edna Rivera testified that appellant moved and did not notify probation of his move, that he failed to appear for a March 22 appointment, and that he tested positive for heroin on March 8 and morphine on March 15. Officer Rivera did not think appellant was successfully “going through” probation. On cross-examination, defense counsel asked Officer Rivera if appellant had a “medical condition.” Officer Rivera testified that appellant told the officer he had a hernia, for which he was under medical care, and for which he had surgery. Appellant provided Officer Rivera with a “medical paper” which listed things appellant was not supposed to do regarding his condition, such as “no sex for four weeks,” and no lifting of heavy objects. But Officer Rivera noted that nothing in the medication orders prevented appellant from maintaining contact with his probation officer or attending a court review.
Appellant testified in his own behalf that he had had hernia surgery on February 14, 2006, for which he was given morphine and Vicodin. Appellant recalled being directed to report to probation for an appointment on March 22, but claimed he was in bed and could not get out. He claimed that during his time of recovery, he got another hernia. When asked if he moved from his reported residence in April, appellant stated that he had a “5 day notice” and had to do so in a hurry, but that he didn’t report the move to probation because he was too busy finding storage for his belongings and making sure his children got to school. He claimed to have forgotten the April 3 court date as he was busy.
When asked on cross-examination if the March 8 positive drug test was because he was taking heroin, appellant replied, “I guess.” Appellant explained that he did not contact his probation officer on March 22 because he was bedfast, his phone was off, and he could not get out of bed to find a pay phone, although he acknowledged he was able to move out of his apartment and get his children to school during this time. When asked if he recalled the judge telling him that he had a responsibility to go through probation successfully, appellant stated he did, but he had “other responsibilities to take care of.”
Trial counsel did not offer any redirect examination of appellant. Nor did counsel offer any closing argument or discussion when asked by the trial court if he wished to do so.
Appellant, in somewhat of an aside, first questions whether it was appropriate for counsel not to argue for a less than nine-year sentence at the time appellant was granted probation, because, the trial court, at the change of plea hearing, stated that appellant “could probably work a deal for a lot less.” But counsel’s failure to argue for a shorter sentence cannot be seen as ineffective assistance. Taken in context, the trial court’s statement appears to indicate a possibility of a shorter prison term if appellant pled guilty to the charge without the promise of Proposition 36 probation. In response to the statement at the hearing, appellant states, “No, I think I could make this program,” indicating that it was his choice to participate in Proposition 36 treatment rather than prison time.
Appellant next contends defense counsel was ineffective when he failed to examine appellant on redirect. But the cross-examination of a witness is a matter falling within the discretion of counsel, and it rarely provides an adequate basis on appeal for a claim of ineffective assistance of counsel. (People v. Williams (1997) 16 Cal.4th 153, 217; People v. Cox (1991) 53 Cal.3d 618, 662.) Because appellant fails to disclose what evidence, if any, counsel might have elicited from appellant had he reexamined him, the claim of inadequate assistance does not succeed.
Appellant also contends counsel was ineffective when he failed to admit into evidence the medical records that appellant himself provided to probation. But appellant has not shown how the introduction of the records would have assisted him. When Officer Rivera testified that she had a copy of the “medical paper” appellant gave her, she explained that it had on it directives to appellant to avoid certain activities, such as lifting heavy objects, but nothing on the report prevented appellant from contacting his probation officer or attending a court hearing. Accordingly, appellant has not demonstrated deficient performance in representation below an objective standard of reasonableness, nor has prejudice been established. (People v. Lucero (2000) 23 Cal.4th 692, 728.)
Finally, appellant contends counsel was ineffective when he failed to make an argument before the court issued its ruling. But “[t]he issue before us, however, is not defendant’s entitlement to closing argument, but whether he has been denied effective counsel because his lawyer chose not to make such an argument.” (People v. Espinoza (1979) 99 Cal.App.3d 44, 47.) “Closing argument may be waived in an appropriate case as a matter of tactics. [Citations.]” (People v. Diggs (1986) 177 Cal.App.3d 958, 970.) We presume that the decision fell within the wide range of reasonable professional choices available to counsel, and it is appellant’s burden to establish otherwise. (Bell v. Cone (2002) 535 U.S. 685, 698.)
Appellant contends that defense counsel should have argued that appellant remain on probation. But, given the substantial evidence that appellant violated probation on numerous occasions and did not appear to be committed to the idea of following through on probation, counsel may have reasoned that argument would have been futile. Given these circumstances, defense counsel’s decision to waive closing argument “was a judgment call well within his prerogative to make” (People v. Espinoza, supra, 99 Cal.App.3d at p. 48) and no prejudice was established.
We reject appellant’s claim of ineffective assistance.
3. Did the trial court err when it denied appellant’s Marsden motion?
Before sentencing, appellant moved for appointment of a new attorney under People v. Marsden, supra, 2 Cal.3d 118. Following a hearing, the motion was denied. Appellant contends the trial court abused its discretion in denying the motion. We disagree.
At the hearing, the trial court asked appellant why he was “unhappy” with defense counsel. Appellant explained that he asked counsel to make a motion to “strike a strike” which he failed to do, and he asked counsel to subpoena his medical records in order to explain “why I couldn’t go to that program.”
The trial court explained that it would not strike appellant’s prior conviction for first degree burglary in 1991, and that, although it appeared that appellant was ineligible for Proposition 36, it had been granted anyway. The court then stated that appellant “got what [he] bargained for” and asked whether counsel’s failure to subpoena his medical records was his only other complaint. Appellant replied that it was.
The trial court then asked defense counsel about the medical records, and counsel explained that the records would be of “marginal relevance, at best,” since appellant had non-drug related violations of failing to show up or report to probation. The trial court agreed, finding the medical records would be “basically irrelevant to the issues.” When appellant was asked how he thought the medical records could be relevant, he stated, “I am talking about my health because I also got another hernia already because I wasn’t supposed to be moving because I got evicted from the house. And right now at Madera County Jail they won’t do nothing with it.” The trial court then denied the motion.
“When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance.” (People v. Crandell (1988) 46 Cal.3d 833, 854, disapproved on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365.)
“The defendant … cannot rest upon mere failure to get along with or have confidence in counsel.” (People v. Bills (1995) 38 Cal.App.4th 953, 961.)
As detailed above, nothing in the record suggests the trial court deprived appellant of the opportunity to speak out regarding his dissatisfaction. Rather, the court followed through on appellant’s concerns to determine the crux of his complaint. Appellant agreed that his only “remaining” complaint was that counsel had not subpoenaed his medical records. On appeal, appellant claims this failure denied him a defense.
But a disagreement as to tactics and strategy is not sufficient to require substitution of counsel. (People v. Stewart (1970) 6 Cal.App.3d 457, 464-465.) There is “no constitutional right to an attorney who will conduct the defense of the case in accordance with an indigent defendant’s whims.” (People v. Nailor (1966) 240 Cal.App.2d 489, 494.) At the hearing, the trial court asked counsel to respond to appellant’s allegations. Counsel explained that he thought appellant had asked that he subpoena the record for his previous violation of probation, and not for sentencing, and that, in any event, the medical records would have only “marginal relevance, at best.” The court agreed.
When the court has conducted an adequate hearing, as it has here, and denied the request for substitute counsel, we review the court’s ruling for abuse of discretion. (People v. Ortiz (1990) 51 Cal.3d 975, 980, fn. 1.) “Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would ‘substantially impair’ the defendant’s right to assistance of counsel.” (People v. Webster (1991) 54 Cal.3d 411, 435.) “A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].” (People v. Crandell, supra, 46 Cal.3d at p. 854.) “To the extent there was a credibility question between defendant and counsel at the hearing, the court was ‘entitled to accept counsel’s explanation.’ [Citation.]” (People v. Smith (1993) 6 Cal.4th 684, 696.)
There is no basis for concluding the court abused its discretion in denying appellant’s Marsden motion.
4. Did the trial court err when it denied appellant’s Romero motion?
Appellant pled no contest to heroin possession in exchange for Proposition 36 probation. During the plea, appellant admitted a 1991 strike conviction for first degree burglary, and two other convictions. At sentencing a year later, following various probation violations, defense counsel asked that the court strike appellant’s strike conviction. Appellant asserts on appeal that the trial court abused its discretion when it failed to grant his Penal Code section 1385 motion to strike “any of his prior convictions.” We disagree.
Penal Code section 1385, subdivision (a) provides in relevant part, “The judge or magistrate may … in furtherance of justice, order an action to be dismissed.” In Romero, the California Supreme Court concluded that “section 1385[,] [subdivision] (a) … permit[s] a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law.” (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.)
In determining whether to strike a prior conviction “in furtherance of justice,” a court must consider “‘“both … the constitutional rights of the defendant, and the interests of society represented by the People .…”’” (People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530.) The trial court must consider the defendant’s background, the nature of the current offense and other individualized considerations (id. at p. 531), including all of the relevant factors, both aggravating and mitigating (People v. Tatlis (1991) 230 Cal.App.3d 1266, 1274). As further clarified in People v. Williams (1998) 17 Cal.4th 148, our Supreme Court held:
“[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams, supra, at p. 161.)
Appellant asserts the trial court abused its discretion because it did not take into consideration that the current offense was impacted by his substance abuse, the fact that his prior strike conviction was 15 years old, and that he had no other theft convictions within the past 11 years.
We review a ruling upon a motion to strike a prior felony conviction under a deferential abuse of discretion standard. (People v. Williams, supra, 17 Cal.4th at p. 162.) Appellant bears the burden of establishing that the trial court’s decision was unreasonable or arbitrary. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978 [presumption that trial court acts to achieve lawful sentencing objectives].) We do not substitute our decision for that of the trial court. (People v. Myers (1999) 69 Cal.App.4th 305, 310.) “It is not enough to show that reasonable people might disagree about whether to strike one or more of [the defendant’s] prior convictions.” (Ibid.) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
We find no indication in the record that the trial court did not properly weigh the various factors. As noted earlier, appellant’s prior criminal history is quite lengthy and dates back to the beginning of 1969. It consists of some 20 plus offenses and numerous violations of probation and parole. The probation report lists four juvenile adjudications, two each for burglary and possession of toluene or similar toxic substance. As an adult, aside from the 1991 first degree burglary, appellant had a number of Vehicle Code violations, as well as petty theft, petty theft with a prior, theft, possession of various drugs, false representation to a police officer, second degree burglary, and disorderly conduct violations. He was on parole at the time of the current offense.
At the motion to strike the prior conviction, defense counsel argued that appellant was an addict and his prior record was “either drug convictions or mostly drug related convictions,” and that appellant was “primarily a danger to himself more than to the community.” The prosecution disagreed, stating that appellant’s criminal history included first degree burglary, theft, sale and possession of dangerous weapons, and receiving stolen property, and although appellant “maybe is a drug user” he is “stealing and robbing from the community to support his habit.”
There is no mention in the probation report of a conviction for selling and possessing dangerous weapons. The prosecutor may have meant to say sale and possession of dangerous drugs. Nor is there any reference to a violation of receiving stolen property (§ 496, subd. (a)).
Following argument by counsel, the trial court denied the motion, stating:
“The Court has read and considered the report and recommendation of the Probation Officer. Although I have the discretion to strike the strike prior, I am not going to do so because of [appellant’s] long record. And even after receiving the strike, he continues to commit new offenses and violate probation and parole. [¶] Now, [appellant] is a long time substance abuser. It would appear from the record that he has been abusing substances since he was a juvenile back in the 60’s. And it’s unevaded and untreatable. And therefore, he has again, once again, violated probation. … And he would be a danger to the community because he continues to commit at least theft related offenses.”
It is clear that the trial court did consider all of the relevant factors. Despite appellant’s claim to the contrary, the court expressly considered appellant’s drug addiction and determined appellant was probably incapable of maintaining a life free of drug use and crime. In People v. Gaston (1999) 74 Cal.App.4th 310, the appellate court rejected drug dependency as a circumstance justifying striking a strike prior. The court stated, “Although ‘drug use appears to be an underlying factor in [the defendant’s] criminal behavior, and in fact may be the root cause thereof,’ the record is barren of any attempts by [the defendant] to ‘root out’ such destructive drug dependency. Accordingly, his drug dependency does not fall into the category of mitigating circumstances.” (Id. at p. 322.)
Since the trial court considered all relevant factors in making its decision, it did not act arbitrarily or capriciously in denying appellant’s motion to strike his prior conviction. Accordingly, the trial court did not abuse its discretion in denying his motion to strike his prior conviction. (People v. Jordan (1986) 42 Cal.3d 308, 318.)
5. Did the trial court err when it denied appellant’s request for CRC drug treatment?
During sentencing, defense counsel asked that the court “strike [appellant’s] strike and have him sent to CRC and see if he can get all squared away there.” The court subsequently denied appellant’s motion to strike the strike, but made no further mention of CRC drug treatment. Appellant now contends the trial court erred when it denied his request for CRC treatment under Welfare and Institutions Code section 3051. We disagree.
Further statutory references are to the Welfare and Institutions Code unless indicated.
Section 3051 vests discretion in the trial court to determine whether evaluation for commitment to CRC is appropriate. (People v. McGinnis (2001) 87 Cal.App.4th 592, 595.) But, as respondent correctly points out, section 3052, subdivision (a)(2) makes a defendant statutorily ineligible for CRC if his or her aggregate term exceeds six years. Appellant was sentenced to an aggregate term of nine years, making him statutorily ineligible for CRC drug treatment. Further, Penal Code section 667, subdivision (c)(4) makes a CRC commitment unavailable where the defendant has a strike. Defense counsel seemed to realize all of this when, at sentencing, he asked that the trial court strike appellant’s prior strike and then send him to CRC drug treatment. Defense counsel’s statement appears to indicate that he knew CRC treatment was only a viable request if the trial court struck the prior, which it did not do.
We have already held that denial of the Romero motion was not an abuse of discretion. Granting the motion in order to circumvent Penal Code section 667, subdivision (c)(4) would have been improper. (People v. Williams, supra, 17 Cal.4th at p. 161 [in ruling on Romero motion, no weight should be given to “bare antipathy to the consequences for any given defendant”].)
6. Did the trial court err when it failed to specify the statutory basis for the imposition of various fines and fees?
Appellant contends that remand to the trial court is necessary so that it can prepare an amended abstract of judgment that separately lists the statutory basis for all fines, fees, and penalties imposed at sentencing. Respondent agrees, as do we.
At sentencing, the trial court stated appellant was to:
“Pay a $162.50 laboratory analysis fee pursuant to Section 11372.5 of the Health and Safety Code, which includes the penalties and assessments as previously ordered. You are ordered to pay a $227.50 fine pursuant to Section 11350, Subdivision (c), of the Health and Safety Code, which includes the penalties and assessments as previously ordered.”
We interpret the trial court’s reference to fees, penalties, and fines “previously ordered” to refer to orders made at the time appellant was originally placed on probation.
The abstract of judgment lists a lab fee of $162.50 per Health and Safety Code section 11372.5, including penalties and assessments, with a note to “See Probation report for breakdown.” The abstract also indicates that appellant is to pay a $227.50 fine per Health and Safety Code section 11350, including penalties and assessments, with a note to “See Probation report for breakdown.” The minute order for sentencing reflects the same amounts and also the same note referring to the probation report for a breakdown of penalties and assessments.
In People v. High (2004) 119 Cal.App.4th 1192, the trial court, instead of reading the separate fines, fees, penalties, and surcharges into the record at sentencing, stated:
“‘The court will impose a theft fine pursuant to [Penal Code section] 1202.5 payable to Butte County Sheriffs’ Office in the sum of $34. The court will impose a criminal laboratory analysis fee in the total sum of $510, a drug program fee, together with surcharges and penalties in the total sum of $1,530, a clandestine drug lab fine, together with penalties, assessments and surcharges totaling $1,700.’” (People v. High, supra, at p. 1200.)
The minute order listed the $1,530 sum as a drug program fee (Health & Saf. Code, § 11372.7), and both the minute order and the abstract of judgment designated the $1,700 assessment as a clandestine drug lab fine (Health & Saf. Code, § 11379.6, subd. (a)). (People v. High, supra, at p. 1200.) The court remanded with directions to list, “with the statutory basis, all fines, fees and penalties imposed on each count.” (Id. at p. 1201.) The court explained:
“Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment. [Citations.] The abstract of judgment form used here, Judicial Council form CR-290 (rev. Jan. 1, 2003) provides a number of lines for ‘other’ financial obligations in addition to those delineated with statutory references on the preprinted form. If the abstract does not specify the amount of each fine, the Department of Corrections cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency. [Citation.] At a minimum, the inclusion of all fines and fees in the abstract may assist state and local agencies in their collection efforts. [Citation.] Thus, even where the Department of Corrections has no statutory obligation to collect a particular fee, … the fee must be included in the abstract of judgment. [Citation.] ‘[A] fine is … part of the judgment which the abstract must “‘digest or summarize.’” [Citations.]’” (People v. High, supra, 119 Cal.App.4th at p. 1200.)
The court in High stated that it would “direct the trial court to correct the cited clerical errors,” and in the disposition it remanded the cause with directions to “separately list, with the statutory basis, all fines, fees and penalties imposed on each count .…” (People v. High, supra, 119 Cal.App.4th at pp. 1200-1201.)
We agree with the parties that remand is necessary here. Neither the oral pronouncement of judgment, the sentencing minute order, nor the abstract of judgment specified the statutory basis for all fines, fees, and penalties imposed. Although the probation report lists the breakdown of these fines, we believe this is insufficient. While we commend the trial court for its attempt to comply with High by referring to a breakdown from the probation report on the abstract of judgment form, we are concerned that the probation report itself will not be available for reference along with the abstract of judgment. A copy of the probation report is normally forwarded to the Department of Corrections and Rehabilitation (DCR), as is the abstract of judgment, but we question whether the probation report would be freely available within the DCR.
For these reasons, we will remand this matter to the trial court for correction of the abstract of judgment. We note that we are unaware of any factor that would prohibit the trial court from correcting the abstract of judgment simply by referring on the form to an attached page containing the breakdown of fines and fees.
We note that the trial court did not, at the sentencing hearing, state that reference should be made to the probation report for the breakdown of fines, fees, and assessments. In connection with this issue, however, appellant requests only that the matter be remanded for correction of the abstract of judgment.
7. Does cumulative error require reversal?
In conclusion, appellant contends that the cumulative impact of all of the above errors deprived him of a fair trial. We have either rejected appellant’s claims of error and/or found that any errors, assumed or not, were not prejudicial. Viewed cumulatively, we find that any errors do not warrant reversal of the judgment. (People v. Stitely (2005) 35 Cal.4th 514, 560.)
DISPOSITION
The judgment is affirmed. The cause is remanded to the trial court with directions to prepare an amended abstract of judgment in accordance with this opinion and to forward a certified copy of the abstract to the DCR.
WE CONCUR: GOMES, Acting P.J., HILL, J.