Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCR213128
Margulies, J.
Defendant pleaded no contest to a charge of attempted murder and admitted an enhancement for personal use of a firearm. In a prior decision, we rejected defendant’s contention that he should have been permitted to withdraw his plea, but we remanded for resentencing, finding the trial court had erred under Blakely v. Washington (2004) 542 U.S. 296 (Blakeley). On appeal from the resentencing, defendant contends the trial judge committed reversible error in failing to state on the record he had considered the probation report and his attorney rendered ineffective assistance. We affirm.
I. BACKGROUND
Defendant was charged in an amended information, filed April 20, 2006, with three counts of attempted murder (Pen. Code, § 664), three counts of assault with a firearm (§ 245, subd. (a)(2)), one count of shooting from a motor vehicle (§ 12034, subd. (d)), and one count of shooting at an occupied vehicle (§ 246). The amended information also alleged several enhancements, including that the acts were committed in association with the activities of a criminal street gang (§ 186.22, subd. (b)(1)), defendant personally used a firearm (§§ 1203.06, subd. (a)(1) & 12022.5, subd. (a)), and he inflicted great bodily injury on a victim (§ 12022.7, subd. (a)).
All statutory references are to the Penal Code.
Evidence was presented at the preliminary hearing that defendant became involved in an argument with Daniel Maldonado at a convenience store in Vacaville. The conflict occurred because defendant and Maldonado were members of different street gangs, and defendant was “trespassing” on territory claimed by Maldonado’s gang. The two men exited the store at the same time. Defendant, driving a van, left with his sister, while Maldonado remained behind in the store parking lot. Soon after, Maldonado and two others left the parking lot in a car. When Maldonado’s car next encountered defendant’s van, Maldonado saw defendant, resting the barrel of a rifle on his forearm, fire three or four shots into Maldonado’s car from the driver’s side of the van. The driver of Maldonado’s car, his girlfriend, received two nonfatal bullet wounds.
Defendant eventually pleaded no contest to the attempted murder of Maldonado’s girlfriend and admitted the gang affiliation allegation “for purposes of establishing” the personal use of a firearm allegation. The remaining counts were dismissed.
In our prior decision, People v. Lomeli (Sept. 23, 2008, A116446 [nonpub. opn.]), we rejected defendant’s contention he should have been permitted to withdraw his plea. However, we reversed the imposition of sentence. The trial court had imposed the nine-year upper term on the charge of attempted murder on the basis of a purported plea agreement, but we found no evidence of the plea agreement in the record. As a result, we concluded the trial court had imposed a sentence greater than the middle term on the basis of facts not found by a jury or stipulated by defendant, in violation of Blakely, and remanded for resentencing.
At the resentencing hearing, defense counsel argued the court should impose the mitigated term on the attempted murder charge. The probation report had cited as aggravating factors that defendant occupied a position of leadership, the crime demonstrated planning, defendant’s convictions were of increasing severity, and the crime involved violent conduct presenting a danger to society. It cited a single mitigating factor, that defendant had a limited prior record. Counsel reviewed the report’s reasoning and argued that most of the aggravating factors found by the probation office were not, in fact, present. In addition to the cited mitigating factor, counsel noted defendant had a substance abuse problem that decreased his culpability. Counsel also noted defendant’s glaucoma, which reduced the threat he presented of further criminal conduct. In sum, he contended, there was only one “solid” aggravating factor against two “solid” mitigating factors. The trial court rejected the argument, finding the aggravating and mitigating factors “offset, ” and imposed the 7-year middle term on the attempted murder charge, along with a mandatory 10-year term for the admitted enhancement.
II. DISCUSSION
Defendant contends his case should be remanded for a third sentencing because the sentencing judge did not state on the record he had reviewed the probation report and because his attorney failed to provide competent representation by not arguing certain factors in mitigation during the sentencing hearing and failing to request a supplemental probation report prior to defendant’s resentencing.
A. Review of Probation Report
Section 1203, subdivision (b)(3) requires a sentencing judge both to review the probation report and to confirm on the record at the sentencing hearing that he or she has done so. The resentencing record contains no such certification.
While early cases held the sentencing judge’s failure to state on the record that the probation report was reviewed to be reversible error per se (e.g., People v. Williams (1963) 223 Cal.App.2d 676, 680), more recent cases have relaxed this rule. It is generally accepted that a trial court’s written notation in the record that it reviewed the probation report is sufficient to comply with section 1203, subdivision (b)(3). (People v. Valenzuela (1968) 259 Cal.App.2d 826, 833.) Even when there is neither written nor oral certification of probation report review, the most recent decision to consider the issue, People v. Gorley (1988) 203 Cal.App.3d 498 (Gorley), held “the purpose of the certification required by section 1203, subdivision (b), is sufficiently served and remand is not required if the record otherwise clearly shows that the court has read the [probation report] or has considered the information provided in it.” (Id. at pp. 506–507.) The court quickly qualified this rule, noting, “in light of the difficulty in determining circumstantially whether a judge has read and considered the [probation report], it will be a rare case in which a remand can be avoided absent a written or oral section 1203... statement.” (Id. at p. 507.) Yet on the record in that case, the Gorley court held that remand was unnecessary because “defense counsel’s remarks at sentencing... fairly summarized the findings and recommendation of the supplemental [probation report], which was quite brief and contained little new information.” (Ibid.)
Here, the same judge conducted both the original sentencing and the resentencing. The Attorney General argues we should conclude the judge reviewed the probation report in connection with the original sentencing, based on a notation to that effect in the minute order. The same minute order, however, states it is not the original order but a facsimile prepared from the reporter’s transcript after the original minute order had been lost. Because that reporter’s transcript from the original sentencing hearing contains no indication the judge considered the probation report, the notation in the “reconstituted” minute order appears to be baseless.
Nonetheless, applying the rule of Gorley, we find remand unnecessary. As in Gorley, the trial court was presented with a fairly brief and straightforward probation report. The argument of defense counsel at sentencing, outlined above, fairly summarized the findings of the probation report bearing on sentencing. Although defendant cites matter from the probation report that was not mentioned by defense counsel in his argument, this information was of minor relevance to the sentencing decision. As discussed below, the additional factors in mitigation claimed by defendant on appeal do little to mitigate his culpability for this offense, and defendant’s claim there is reason to doubt he was the shooter relies on a strained reading of the evidence and is inconsistent with his plea. We are satisfied that, as required by Gorley, “the record... clearly shows that the court has read the [probation report] or has considered the information provided in it.” (Gorley, supra, 203 Cal.App.3d at pp. 506–507.)
B. Inadequate Assistance of Counsel
Defendant claims his counsel rendered ineffective assistance because counsel (1) did not mention during the sentencing hearing two purported mitigating factors, that defendant suffered from a learning disability and had grown up without a father and was required to act as a surrogate parent to his three younger siblings; and (2) did not request a supplemental probation report.
“The standard for showing ineffective assistance of counsel is well settled. ‘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.’ [Citations.] A reviewing court will indulge in a presumption that counsel’s 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 thus bears the burden of establishing constitutionally inadequate assistance of counsel.” (People v. Gray (2005) 37 Cal.4th 168, 206–207.)
Putting aside the issue of the reasonableness of counsel’s conduct, we are unpersuaded either factor cited by defendant is likely to have changed the outcome of the sentencing, as required to demonstrate prejudice. This was a reckless and violent crime that endangered the lives of several people, motivated by nothing more than gang malice. Despite defendant’s claim, the factors in mitigation were nominal, and the trial court’s conclusion the aggravating and mitigating factors offset was generous to defendant. The two additional factors cited by defendant would not have added significantly to the calculation. Neither is among the sentencing mitigation factors listed in California Rules of Court, rule 4.423. While a mental or physical condition can be considered if it significantly reduced defendant’s culpability (Cal. Rules of Court, rule 4.423(b)(2)), it is difficult to see how defendant’s purported learning disability reduced his culpability for this gang-related violence. Further, the circumstances of his childhood have little bearing on his culpability for this particular crime. While the list of mitigation factors in rule 4.423 is not exclusive, it lists the type of factors that are most pertinent to a determination of mitigation. Had defense counsel mentioned the social factors cited by defendant, it is highly unlikely to have altered the trial court’s view that the factors in aggravation and mitigation were balanced.
Similarly, we find no basis for concluding the failure to request a supplemental probation report affected the court’s sentencing decision. Necessarily, such a request would not have influenced the sentencing decision unless the supplemental report listed additional factors in mitigation not found in the original report, including developments since the rendition of the original report with positive bearing on the sentencing decision. While defendant discusses at length the trial court’s obligation to order a supplemental probation report, he makes no offer of proof, let alone provides actual evidence, of any matter that could have been included in the supplemental report to change the court’s sentencing decision. As a result, we have no evidentiary basis for determining the failure to request a supplemental report to have been prejudicial. In the absence of evidence of prejudice, there is no basis for a finding of ineffective assistance of counsel.
While California Rules of Court, rule 4.411(c) seems to suggest the trial court had an obligation to order a supplemental report in these circumstances, such a reading of rule 4.411(c) would place it in conflict with rule 4.411(b), which states that a trial court is not required to order a probation report for a defendant not eligible for probation, although that is certainly the best practice. We conclude the trial court was under no greater obligation to order a supplemental probation report than to order the original probation report. (See, e.g., People v. Tatlis (1991) 230 Cal.App.3d 1266, 1273; see also People v. Bullock (1994) 26 Cal.App.4th 985, 988–990.)
III. DISPOSITION
The judgment of the trial court is affirmed.
We concur: Marchiano, P.J.Banke, J.