Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. Nos. F07908053, F07909295, F08900941 W. Kent Hamlin, Judge.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, A.P.J., Cornell, J., and Hill, J.
Pursuant to a plea agreement, appellant Aziz Azmi Jamaleddin entered pleas as follows: In Fresno County Superior Court case No. F07908053 he pled guilty to possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)); in Fresno County Superior Court case No. F07909295 he pled guilty to first degree burglary (Pen. Code, §§ 459, 460, subd. (a)); and in Fresno County Superior Court case No. F08900941 he pled no contest to first degree robbery (§§ 211, 212.5, subd. (a)) and admitted an enhancement allegation that he committed that offense while released on bail or his own recognizance (§ 12022.1). The court imposed a prison term of nine years four months, consisting of the six-year upper term on the robbery in case No. F08900941, two years on the accompanying on-bail enhancement and one year four months on the burglary in case No. F07909295. The court also imposed a concurrent two-year middle term in case No. F07908053.
Except as otherwise indicated, all statutory references are to the Penal Code.
On appeal, appellant contends (1) the court, in imposing the upper term on appellant’s robbery conviction, impermissibly relied on facts underlying counts dismissed pursuant to the plea agreement as circumstances in aggravation; and (2) if that contention is deemed waived by defense counsel’s failure to object at sentencing, appellant was denied his constitutional right to the effective assistance of counsel. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Our factual statement is taken from the report of the probation officer.
Case No. F07908053
Police stopped a vehicle appellant was driving after noticing the vehicle had paper license plates. Appellant had in his possession a BB-gun,.06 grams of a substance containing methamphetamine, and a glass smoking pipe.
Case No. F07909295
“AM” went to the apartment of his friend “MC,” where he encountered a man, who identified himself as MC’s brother-in-law. The man left the apartment. AM later met with MC, and told her that her brother-in-law had been at her apartment. MC said she did not have a brother-in-law. She went home and found that various home electronics items, valued at $710, were missing. Two days later, police made contact with appellant, and found in his possession a video recording and credit card belonging to MC. AM went to where the police had detained appellant and identified him as the man he had seen in MC’s apartment.
Case No. F08900941
“RF” approached Annette Husted, who was working as a prostitute, and negotiated a price for sex. They went to a motel and entered a room where appellant was sleeping on a bed. Appellant “demanded money for the sex act, and removed [RF’s] wallet.” Appellant then “displayed a handgun to RF and told him to go back to their vehicle because they were going to go get money.” Appellant then “took Husted and [RF] to an ATM machine” where he “forced RF to remove $400 from his bank account.” The group then drove to another ATM machine “where RF removed another $100.” Appellant then told RF that they would then either go to RF’s residence “to obtain some more property, or they would go to the country and ‘take care of business,’....” The group then drove to RF’s residence, where RF placed two laptop computers and other items in a duffel bag and handed it over to appellant.
Procedural Background
Pursuant to the plea agreement, various charges and enhancement allegations were dismissed, including, in case No. F08900941, charges of kidnapping for the purpose of committing another crime (§ 209, subd. (b)(1)) and first degree burglary with a non-participant present (§§ 459, 460, subd. (a), 667.5, subd. (c)(21)), and enhancement allegations that appellant personally used a firearm in committing the kidnapping and the burglary (§ 12022.53), personally used a handgun in committing the burglary and committed the kidnapping and the burglary while free on bail or his own recognizance (§ 12022.1).
In sentencing appellant, the court stated: “[T]hese are offenses for which [appellant] is presumptively ineligible for probation. His failures to make court dates were not due to his health but because of his total inability to comply with the Court’s directions and the Court’s conditions of release. He was released, committed new crimes, the Court released him again, and he continued, then, to commit crimes, including the most serious crime of all of his crimes, that being the robbery which started as a kidnap for robbery, a crime punishable by life in prison. Based on his repeated commission of crimes while out of custody O.R. or on bail, based on his increasingly serious crimes, and based on his presumptive ineligibility for crimes while on probation, the Court finds he would not be a suitable candidate for probation.... When one kidnaps a person with a weapon and takes them to an ATM to rob them, one has committed a life top crime, which the People dismissed in light of the plea, and I think in light of that, it’s an important consideration. I think I ought to consider the dismissed counts. There were a number of crimes dismissed... in light of his pleas to the charges that are before me for sentencing. Those are all properly considered as factors in aggravation. He did use a weapon, the weapon having been dismissed as part of the plea agreement, but, nonetheless, the People’s charge of that and dismissal of that is a factor for the Court to at least consider in imposing sentence. But even independent of that, his conduct here is violent conduct which indicates a serious danger to society. His sustained petitions in juvenile delinquency proceedings and violence as an adult are of increasing seriousness. His prior performance on juvenile probation was unsatisfactory.... [H]e was on juvenile probation at the time of the commission of one of the crimes before me for sentencing today, which is also... another aggravating factor. The Court in selecting its sentence will be choosing one of his crimes which could have run consecutive to the others, and we’ll be imposing that concurrent rather than consecutive, that being another appropriate factor for the Court to consider in aggravation.
“I’m not aware of any mitigating factors in this case. He was the leader in this case. It was his determination to take the victim to another location, it was his use of a weapon that encouraged and resulted in his compliance. He was the one that also had the other crimes and was out on bail or O.R. at the time of the commission of the offense.... He’s sentenced to the Department of Corrections for the six-year aggravated term for [the robbery in case No. F08900941]. [¶]... [¶]... The aggravated term is selected for the reasons previously stated....”
After imposing sentence, the court asked, “Anything else.” Defense counsel responded, “No, Your Honor.”
DISCUSSION
As indicated above, appellant contends the court erred in relying on the facts underlying counts dismissed pursuant to the plea agreement in imposing the upper term on his robbery conviction. He asserts that he entered his plea with the understanding that he would “‘suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, the dismissed count[s],’” and that the court’s reliance on such facts in imposing the upper term “subjected [appellant] to an implied misadvisement about the consequences of his plea.” Appellant bases this argument on People v. Harvey (1979) 25 Cal.3d 754.
“In [Harvey] the Supreme Court held that, in imposing sentence under a plea bargain, the court may not consider evidence of any crime as to which charges were dismissed as a “circumstance in aggravation” supporting the upper term on the remaining counts. [Citation.] The court deemed it ‘improper and unfair’ to permit the sentencing court to consider any of the facts underlying dismissed counts because, absent an agreement to the contrary, a plea bargain implicitly includes the understanding that the defendant will suffer no adverse sentencing consequences by reason of the facts underlying, and solely pertaining to, dismissed counts. [Citation.] [¶] To avoid the Harvey restriction, prosecutors often ‘condition [ ] their plea bargains upon the defendant agreeing that the sentencing court may consider the facts underlying the not-proved or dismissed counts when sentencing on the remainder.’ [Citation.]... This agreement is known as a ‘Harvey waiver.’ [Citation.] A Harvey waiver permits the sentencing court to consider the facts underlying dismissed counts and enhancements when determining the appropriate disposition for the offense or offenses of which the defendant stands convicted.” (People v. Munoz (2007) 155 Cal.App.4th 160, 166-167.)
As the parties do not dispute, the court cited as circumstances in aggravation appellant’s conduct underlying the kidnapping charge and the firearm-use enhancements that were dismissed pursuant to the plea agreement, even though appellant did not execute a Harvey waiver. However, as the parties also do not dispute, appellant did not object at sentencing to any of circumstances in aggravation cited by the court. Therefore, appellant has forfeited his claim that he was misadvised of the consequences of his plea, under the rule that “absent a timely objection, a defendant waives a claim of error as to a trial court’s midadvisement concerning the consequences of a guilty plea.” (People v. McClellan (1993) 6 Cal.4th 367, 377; accord, People v. Walker (1991) 54 Cal.3d 1013, 1022-1023; In re Moser, 6 Cal.4th 342, 352, fn. 8 [where “a trial court’s imposition at the sentencing hearing of a sentence at variance with the advice given at the earlier plea proceeding[,]... a defendant reasonably may be required to bring the discrepancy to the court’s attention by a timely objection at the sentencing hearing”].)
Appellant’s claim is also barred under the sentencing error forfeiture rule of People v. Scott (1994) 9 Cal.4th 331. In that case our Supreme Court held that where there has been a meaningful opportunity to do so, a defendant who fails to object to a “trial court’s failure to properly make or articulate its discretionary sentencing choices” cannot raise the claim for the first time on appeal. (Id. at p. 353.) “Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.” (Ibid.; see also In re Jimmy P. (1996) 50 Cal.App.4th 1679, 1685, fn. 8 [Harvey error waived by the minor’s failure to object to the juvenile court’s consideration of other circumstances not specifically related to the crime at disposition hearing].) A meaningful opportunity to object simply means that counsel has the opportunity to address the court on the sentencing issue involved. (People v. Zuniga (1996) 46 Cal.App.4th 81, 84.) Here, appellant’s attorney had the opportunity to assert a Harvey objection when, after the court imposed sentence, the court asked him if he had “[a]nything else” to raise. Neither appellant nor his counsel raised any objection.
In any event, the court’s Harvey error was harmless. “When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.” (People v. Price (1991) 1 Cal.4th 324, 492.) Appellant argues the court’s error cannot be considered harmless, given “the weight the trial court placed on the dismissed counts [and enhancements]....” However, the trial court stated four “independent” reasons for imposing the upper term: appellant engaged in violent conduct that indicates a serious danger to society (Cal. Rules of Court, rule 4.421(b)(1)); his sustained petitions in juvenile delinquency proceedings were of increasing seriousness (rule 4.421(b)(2)); his prior performance on juvenile probation was unsatisfactory (rule 4.421(b)(5); and he was convicted of a crime for which a consecutive sentence could have been imposed but for which the court imposed a concurrent sentence (rule 4.421(a)(7)). Given these reasons, the validity of which appellant does not challenge, and the absence of circumstances in mitigation, it is not reasonably probable the court would have chosen a lesser sentence had it known that some of the reasons for selecting the upper term were improper.
All rule references are to the California Rules of Court.
Ineffective Assistance of Counsel
Appellant contends his counsel’s failure to object to the court’s reliance on the dismissed counts and firearm-use allegations constituted ineffective assistance of counsel. “The burden of proving ineffective assistance of counsel is on the defendant. [Citation.]” (People v. Babbitt (1988) 45 Cal.3d 660, 707.) The defendant must show both deficient performance--“that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates,” and prejudice--“that it is reasonably probable a more favorable determination would have resulted in the absence of counsel’s failings.” (People v. Price (1991) 1 Cal.4th 324, 386.) However, “‘there is no reason for a court deciding an ineffective assistance claim to... address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, 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.’” (People v. Cox (1991) 53 Cal.3d 618, 656, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
As demonstrated above, it is not reasonably probable that the court would have imposed a less severe sentence had counsel raised a claim of Harvey error. Therefore, appellant has not met his burden of demonstrating the prejudice required to establish ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.