People v. Romero CA4/2 ( 2014 )

Filed 10/31/14 P. v. Romero CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E060004
v. (Super.Ct.Nos. FSB1200331 &
FSB1303206)
ORLANDO ROMERO,
OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. William Jefferson
Powell IV, Judge. Affirmed.
Frank J. Torrano, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Barry Carlton, Sharon Rhodes and Adrianne S. Denault, Deputy Attorneys General, for
Plaintiff and Respondent.
Pursuant to a plea agreement, defendant and appellant Orlando Romero pled guilty
in case No. FSB1200331 (the GBI case) to assault by force likely to produce great bodily
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injury. (Pen. Code1, § 245, subd. (a)(1).) On March 23, 2012, in accordance with the
plea agreement, a trial court suspended sentence and placed defendant on probation for a
period of three years, under specified terms. Defendant was later charged with driving
under the influence, within 10 years of a prior conviction of the same offense (Veh. Code,
§§ 23152, subd.(a)/23550.5), and driving with a suspended or revoked license (Veh.
Code, § 14601.2) (case No. FSB1303206 or the DUI case). A jury subsequently found
defendant guilty in the DUI case, and the trial court found him in violation of his
probation. The court revoked his probation in the GBI case and sentenced him to the
upper term of four years in county prison. The court then sentenced him to a consecutive
eight months in the DUI case.
On appeal, defendant contends that the trial court improperly relied on his “post-
probation conduct” in the DUI case, as well as a juror’s statement, to impose the upper
term in the GBI case. In the alternative, he argues that his counsel’s failure to object to
the alleged errors constituted ineffective assistance of counsel (IAC). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The GBI Case (case No. FSB1200331)
On March 23, 2012, defendant entered a plea agreement and pled guilty to assault
by means likely to produce great bodily injury. (§ 245, subd. (a)(1).) In exchange, the
trial court suspended sentence and placed defendant on probation for a period of three
years, under specified terms, including that he violate no law.
1 All further statutory references will be the Penal Code, unless otherwise noted.
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The DUI Case (case No. FSB1303206)
Defendant was subsequently charged with driving under the influence, within 10
years of a prior conviction of the same offense (Veh. Code, §§ 23152, subd.(a)/23550.5,
count 1), and driving with a suspended or revoked license (Veh. Code, § 14601.2, count
2). It was also alleged that he willfully refused a peace officer’s request to submit to a
chemical test, as to count 1 (Veh. Code, § 23577), and that he had served one prior prison
term (§ 667.5, subd. (b)). The probation officer filed a petition for revocation of
probation in the GBI case, based on the DUI case. The court decided to make a
determination as to the probation violation concurrently with the trial in the DUI case.
A trial was held, and an off-duty police officer testified that he observed defendant
drive his motor scooter onto a pedestrian walkway in front of a Target store. The officer
testified that some people exiting the store had to stop because defendant continued to
accelerate on the walkway. The officer eventually made contact with defendant and
noticed that his speech was slurred. The officer asked if he was intoxicated, and
defendant told him to mind his own business. The officer called 911 and waited with
defendant until other officers arrived. Defendant refused to take any field sobriety or
chemical tests. Based on defendant’s slurred speech, red and watery eyes, and smell of
alcohol, the police arrested him for DUI. The officer took defendant to jail and overheard
him admit that he had been drinking bourbon.
After the first three witnesses testified at trial, the bailiff informed the court that
one of the jurors mentioned he might have been “in the area that day.” Out of the
presence of the other jurors, the court questioned the juror. The juror said he thought he
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might have been at Target on the day of the incident because he remembered coming out
of the store and almost being hit by a man on a scooter. He said he and his wife “had to
step back because it was very odd, a person on a scooter that came by right in front of
us.” The juror remembered seeing the police as well. The court excused the juror from
his duty and seated another juror.
The jury subsequently found defendant guilty of counts 1 and 2 and found true the
allegations that he willfully refused to submit to a chemical test to determine his blood-
alcohol content. The court then found defendant in violation of his probation. The court
sent both cases to the probation department for presentence recommendations.
A hearing was held on October 25, 2013. The court noted that it read the
probation officer’s report, which recommended that defendant’s probation be reinstated
in the GBI case, and that he be sentenced in the DUI case to county jail and mandatory
supervision under section 1170, subdivision (h)(5)(A). The court stated it was not
inclined to follow the recommendation to give defendant a split sentence. The court
allowed counsel to argue, and then revoked defendant’s probation in the GBI case and
sentenced him to the upper term of four years. It sentenced him to eight months in the
DUI case. (§ 1170, subd. (h)(5)(A).)
ANALYSIS
I. The Court Properly Imposed the Upper Term
Defendant argues that the trial court improperly imposed the upper term in the
GBI case, based on his conduct in the DUI case, in violation of California Rules of Court,
rule 4.435 (rule 4.435). Defendant similarly claims that the court based the upper term on
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the juror’s statement that he had to “step back” to avoid the person on the scooter, as well
as the court’s “faulty conclusion” from that statement. We disagree.
Rule 4.435, subdivision (b)(1), provides that when a defendant violates the terms
of probation, and the sentencing judge determines that he will be committed to prison,
“[t]he length of the sentence must be based on circumstances existing at the time
probation was granted, and subsequent events may not be considered in selecting the base
term . . . .” “When a judgment of imprisonment is to be imposed and the statute specifies
three possible terms, the choice of the appropriate term shall rest within the sound
discretion of the court. . . . The court shall select the term which, in the court’s
discretion, best serves the interests of justice.” (§ 1170, subd. (b).) Sentencing courts
have wide discretion in weighing aggravating and mitigating factors. (People v. Avalos
(1996) 47 Cal. App. 4th 1569, 1582.) A single factor in aggravation is sufficient to justify
the imposition of the upper term. (People v. Cruz (1995) 38 Cal. App. 4th 427, 433
(Cruz).) “‘The burden is on the party attacking the sentence to clearly show that the
sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a
showing, the trial court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence will not be
set aside on review.’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal. 4th
968, 977-978.)
Defendant specifically claims that the court’s “perceived dangerousness of [his]
post-probation conduct in the DUI case [citation] was the prime mover of its desire to
imprison him for the longest possible time.” (Italics in original.) He argues that, since
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there was no trial in the GBI case prior to the grant of probation, there were “no
aggravating circumstance that could be relied on by the trial court” to impose the upper
term. He then contends that the court violated rule 4.435 when it imposed the upper
term, based on his “post-probation conduct” in the DUI case. We disagree. The trial
court properly exercised its discretion in imposing the upper term. It read and considered
the probation officer’s report. The probation report did not list any factors relating to the
crime as circumstances in aggravation, but only listed factors relating to the defendant.
(Cal. Rules of Court, rule 4.421, subd. (b).) The court commented on defendant’s past
convictions, noting that “[h]is record vacillates between driving under the influence
offenses and crimes of violence.” The probation report reflected that defendant had prior
convictions dating back to 2000, including seven misdemeanors and three felonies.
Immediately before the court sentenced defendant to the upper term, it stated the
following: “This is not someone who [sic] I have any faith will reform, will change his
ways or will ever be socially acceptable. It appears to me the only way to keep the public
safe is to keep him locked up for as long as possible and I am going to do that.” The
court then found that defendant had a prior record of criminal conduct, that his record
indicated a pattern of regular or increasingly serious conduct, and that his prior
convictions as an adult were numerous. These factors relating to defendant were proper
aggravating circumstances for the court to consider and rely on. (Cal. Rules of Court,
rule 4.421, subd. (b)(2).)
As to defendant’s claim that the court based the upper term on his “post-probation
conduct,” we note that the court sent both the GBI and DUI cases to the probation
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department at the same time for sentencing recommendations. We also recognize that the
court made its sentencing decisions in both cases at the same hearing. Therefore, the
court had to consider defendant’s conduct in the DUI case during this hearing. Although
the court commented that defendant’s conduct in the DUI case was “extremely dangerous
to human life,” this conduct was not necessarily mentioned as a factor in aggravation in
sentencing defendant to the upper term.
In a similar claim, defendant argues that the court “expressly” and “heavily” relied
on the juror’s statement that he and his wife had to “step back” because there was a
person on a scooter that drove right in front of them. He further contends that the court
could not reasonably infer from this statement that he drove on the sidewalk and thereby
“forc[ed] individuals to jump out of his way.” There is no indication in the record that
the court relied on the juror’s statement, or the court’s alleged inference from such
statement, in imposing the upper term.
Even if the trial court did improperly rely on defendant’s conduct in the DUI case
and/or the juror’s statement as aggravating factors, there were still unassailable valid
factors in aggravation. Defendant has not questioned the use of his prior record of
criminal conduct, which indicated a pattern of regular or increasingly serious conduct, or
his numerous prior convictions as valid factors in aggravation. As stated earlier, a single
valid factor in aggravation is sufficient to justify an upper term. (Cruz, supra, 38
Cal.App.4th at p. 433.)
We conclude that the court properly imposed the upper term in the GBI case.
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II. Defendant Has Failed to Establish IAC
The People argue that defendant failed to timely object to the trial court’s alleged
reliance on his conduct in the DUI case and the juror’s statement at the sentencing
hearing; thus, defendant has forfeited such claims. Defendant contends that, if this court
agrees that his claims have been forfeited on appeal, then his counsel’s failure to object
constituted IAC. Defendant has failed to establish IAC.
“‘To establish ineffective assistance of counsel under either the federal or state
guarantee, a defendant must show that counsel’s representation fell below an objective
standard of reasonableness under prevailing professional norms, and that counsel’s
deficient performance was prejudicial, i.e., that a reasonable probability exists that, but
for counsel’s failings, the result would have been more favorable to the defendant.
[Citations.]’ [Citation.]” (In re Roberts (2003) 29 Cal. 4th 726, 744-745.) “If a claim of
ineffective assistance of counsel can be determined on the ground of lack of prejudice, a
court need not decide whether counsel’s performance was deficient. [Citations.]” (In re
Crew (2011) 52 Cal. 4th 126, 150 (Crew).)
For the reasons discussed ante, there is no reasonable probability that objections
would have yielded a more favorable result. (See ante, § I.) Thus, defense counsel did
not render ineffective assistance by failing to object. (Crew, supra, 52 Cal.4th at p. 150.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
KING
J.
MILLER
J.
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