PEOPLE v. MATA (1991)

In 1989 appellant Cesar Marce Mata pleaded guilty to one count of possession of cocaine.  (Health & Saf. Code, § 11350.)   The court suspended imposition of sentence and placed him on five years probation.   In 1991 he was found to be in violation of his probation and a different judge sentenced him to the upper term of three years in prison.

On appeal Mata raises several challenges to the imposition of the aggravated sentence.   His principal contention is that the 1991 sentencing judge erred by failing to consider mitigating factors and findings made by the judge who had granted probation in 1989.   This claim requires that we examine California Rules of Court, rules 435(b)(1) and 433(b) and People v. Goldberg (1983) 148 Cal.App.3d 1160, 196 Cal.Rptr. 470, a case which supports appellant's position.   Having done so, we conclude that there was no error here and we respectfully disagree with Goldberg's interpretation of rule 435(b)(1).

Next Mata argues that the court imposing sentence based its sentencing choice in part on a subjective belief that Mata's previous punishment had been too lenient.   And finally he claims he received ineffective assistance of counsel at the 1991 sentencing hearing.   We find no error warranting reversal and we therefore affirm the judgment and sentence.

BACKGROUND

On October 12, 1989, appellant was arrested in his apartment pursuant to an outstanding felony narcotics warrant.   The ensuing search uncovered 1.4 grams of marijuana, 4.7 grams of cocaine, a small gram scale with a white residue of powder on it, plastic baggies, a bong and a pipe with a marijuana residue in it, and $4,292 in cash in denominations of 100s and 20s.

Appellant was charged in Count I with possession of cocaine for sale, (Health & Saf. Code, § 11351), and in Count II with possession of cocaine (Health & Saf. Code, § 11350), with a special allegation that he committed the offenses while released from custody on bail or on his own recognizance.  (Pen.Code, § 12022.1.)

Pursuant to a negotiated disposition, appellant pleaded guilty to Count II (Health & Saf. Code, § 11350).   As part of the bargain, Count I (Health & Saf. Code, § 11351) was dismissed and the Penal Code section 12022.1 allegation was stricken.   In addition appellant was promised that no state prison time would be imposed and that any local time would run concurrent with time to be served for two pending misdemeanor drunk driving offenses.

At sentencing on November 21, 1989, the superior court accepted the agreement, suspended imposition of sentence and placed appellant on five years formal probation.

Probation was revoked in September of 1990.   Appellant admitted he had violated probation by failing to submit to drug testing and failing to obey all laws, and his probation was reinstated.

Two months later a new case was filed against appellant, charging him with possession of a stolen bicycle, in violation of Penal Code section 496.   The matter proceeded as a probation violation and after a contested hearing on December 7, 1990, the court found appellant in violation of his probation.

On February 14, 1991, appellant was sentenced to the upper term of three years in state prison.   Execution of sentence was suspended and probation was again reinstated, on condition appellant serve an additional 240 days in the county jail.

DISCUSSION

1. Compliance with Rule 435(b)(1) of California Rules of Court

Appellant claims that the judge sentencing him on February 14, 1991, did not comply with rule 435(b)(1).   That rule governs sentencing following revocation of probation and provides that “[i]f the imposition of sentence was previously suspended, the judge shall impose judgment and sentence after considering any findings previously made․” (emphasis added.)   Before turning to the rule itself we will set forth the relevant portions of the two sentencing hearings.

At the 1989 hearing, when appellant was placed on probation, the court entertained the following arguments from counsel:  “MR. BRAYTON [the prosecutor]:  ․ People would ask that the aggravated term be suspended over Mr. [Mata].   There's more than ample reason for the aggravated term, particularly in light of the other offense 12022.1 which were dismissed, but to be before the Court for consideration and Mr. [Mata's] other record in just in the last year, other offenses.

MR. McMILLIN [defense counsel]:  In mitigation, Your Honor, I'd submit the early admission, as well as the apparently lack of extensive record.   Also, I don't think it's necessary to impose and suspend a term especially if you're not going to give him any time.   Have a whole year of local time.   I think it's more appropriate if there's going to be a violation, see what it is rather than trying to—appropriate to wait—tie the hands protectively of a judge.   I'll submit it.”

The court then granted probation, making these observations:  “THE COURT:  Okay.   No statutory provision prohibiting the granting of probation.   The defendant was found with a fairly significant amount of cocaine and cash, paraphernalia, indicating an active role in the crime.   He was on probation when he committed the offense;  danger of addiction.   I consider this a midterm case.   Going to grant probation, formal for a period of five years.”

In 1991, when the court sentenced appellant following violation of his probation, the court had before it the 1989 probation report, and a supplemental report, but did not have a transcribed record of the prior proceedings.   In imposing sentence the court stated:  “․ in a review and a reading of the prior probation report, given the particular facts of the case that he was found with 4.7 grams of cocaine, 1.4 grams of marijuana and particularly $4,292.00 of money which he really couldn't account for factually as I read certainly suggests that it should be an aggravated term․  [¶] [a]nd he was on probation on the occasion as well, so ․ it's an aggravated term for the reasons that I expressed․”

Appellant contends that under rule 435(b)(1) the judge imposing sentence following revocation of probation must consider any findings made by the court which had granted probation.   He claims compliance with the rule would have made a difference in his case because the court in 1989 had found that mitigating factors justified imposition of a midterm sentence rather than the aggravated sentence.

The court granting probation in 1989 was not obliged to make any findings of circumstances in aggravation or mitigation since there was no trial in this case.  Rule 433(b) provides:  “If the imposition of sentence is to be suspended during a period of probation after a conviction by trial, the trial judge shall make factual findings as to circumstances which would justify imposition of the upper or lower term if probation is later revoked, based upon evidence admitted at trial.”  (Rule 433(b), emphasis added.)   No findings are required where the conviction was based upon a guilty plea.  (People v. McKinzie (1982) 134 Cal.App.3d 1016, 1019, 184 Cal.Rptr. 884.)

Appellant concedes as much.   But he argues that rule 435(b)(1) nonetheless requires that the sentencing court “consider[ ] any findings previously made, ” whether they are the findings required by rule 433(b) or not.   That was the holding in People v. Goldberg, supra, 148 Cal.App.3d 1160, 1163, 196 Cal.Rptr. 470.

In Goldberg, defendant entered a guilty plea and imposition of sentence was suspended during a period of probation.   The probation report cited two factors in aggravation and two in mitigation and the judge granting probation made specific factual findings, both in aggravation and in mitigation.   When probation was later revoked and defendant was sentenced, the sentencing court mentioned only the aggravating circumstances when explaining its decision to impose the upper term.

Goldberg recognized that the court granting probation did not have to make factual findings because there had been no trial.   Nevertheless, Goldberg held that since the probation court did make such findings, rule 435(b)(1) required that they be considered by the sentencing court.   The court reasoned that the language of rule 435(b)(1) “is broad and inclusive.   It contemplates consideration of any findings previously made, whether or not such findings were required.”  (Id. at p. 1163, 196 Cal.Rptr. 470.)   The Goldberg court reversed the order revoking probation and remanded the matter to the trial court for resentencing in compliance with rule 435(b).

Appellant claims that Goldberg controls the outcome here.   We disagree, both because we find our case to be distinguishable from Goldberg and also because we differ with that court's interpretation of the findings referred to in rule 435(b)(1).

 Unlike Goldberg, the court granting probation in our case did not make any findings of mitigating circumstances and none were cited in the probation report.   Appellant would have us construe the judge's observation that he considered this “a midterm case” as an “implied finding” of the mitigating factors argued by defense counsel.   This we decline to do.   Since the judge was suspending imposition of sentence, his reference to a possible prison term was improper and may be disregarded by a court later imposing sentence.  (Pen.Code, § 1170, subd. (b);  People v. McKinzie, supra, 134 Cal.App.3d at pp. 1019–1021, 184 Cal.Rptr. 884.)   Furthermore, defense counsel's argument is not to be equated with a “finding,” either express or implied, by the court.   The mere assertion of a mitigating factor does not establish that assertion as a factual finding.  (People v. Regalado (1980) 108 Cal.App.3d 531, 538, 166 Cal.Rptr. 614.)   The court gave no indication that it accepted the factors suggested by counsel;  the grant of probation itself cannot be taken to mean that the court weighed mitigating and aggravating factors.  (People v. Morado (1990) 221 Cal.App.3d 890, 894–895, 270 Cal.Rptr. 707.)   In short, there were no “findings” of mitigating circumstances which could be considered by the court later revoking probation.

 But even if the first court's statements could be construed as findings, we believe the interpretation of rule 435(b)(1) espoused by Goldberg is overly broad.¹  In our view rule 435(b)(1) requires consideration of findings only where findings have been made pursuant to rule 433(b), based upon evidence adduced at trial.   Where the conviction follows the taking of a guilty plea, a judge who later imposes sentence after probation is revoked can easily review the prior probation report and other relevant documentation and be as informed for purposes of pronouncing sentence as the judge who took the plea.   Where there has been a trial, however, it would be a laborious task for the sentencing judge, perhaps years later, to review the entire trial transcript for evidence of aggravating and mitigating circumstances.  Rules 433(b) and 435(b)(1) provide a relatively simple means by which the first judge, having just heard the evidence, can make the necessary findings as to aggravating and mitigating circumstances, which the second judge can then consider when sentence is imposed.   Thus it would appear that judicial efficiency is the purpose underlying these rules.  (People v. McKinzie, supra, 134 Cal.App.3d at p. 1019, 184 Cal.Rptr. 884.)

The interpretation Goldberg advocates would work against this purpose.   As we understand it, Goldberg would require the court revoking probation and imposing sentence, in every case where no appeal had been taken from the order granting probation, to request a transcript of the record of the prior proceedings in order to determine whether any findings were made.   Inevitably questions would arise, as our case illustrates, as to whether statements and observations made by the court in explaining its decision to grant probation amounted to factual findings of circumstances in aggravation and mitigation for purposes of sentencing.   An inquiry of this type would unnecessarily burden the court and thus compromise the goal of judicial efficiency these rules promote.

Goldberg declares that its interpretation of the phrase “any findings previously made” furthers another purpose of rule 435(b)(1), namely “to preclude the possibility that a defendant's bad acts while on probation would influence his [her] sentence upon revocation of probation.”  (People v. Goldberg, supra, 148 Cal.App.3d at p. 1163, 196 Cal.Rptr. 470, fn. omitted.)   We do not see that Goldberg's broad interpretation of the findings requirement of rule 435(b)(1) necessarily operates to prevent a sentencing judge from considering a defendant's subsequent bad acts.   Moreover, there is no need to derive such a purpose from the findings requirement, since the rule itself specifically instructs the judge that “[t]he length of the sentence shall be based on circumstances existing at the time probation was granted, and subsequent events may not be considered․”   Any incidental benefit which might result from a requirement that a sentencing judge consider all findings previously made, whether made pursuant to rule 433(b) or not, we believe is outweighed by the additional burdens such a requirement would place on valuable judicial resources.

For these reasons we conclude that the portion of rule 435(b)(1) which provides that a court revoking probation and imposing sentence consider any findings made by the court which had granted probation refers only to those factual findings made pursuant to rule 433(b), based upon evidence admitted at a trial.   No such findings were made in this case and no findings can be implied on this record.

2. Subjective Considerations Of the Sentencing Judge

 Appellant contends that the sentencing judge's decision to impose the upper term of imprisonment was improperly based on a subjective belief that appellant had hitherto been treated too leniently.  (People v. Molina (1977) 74 Cal.App.3d 544, 141 Cal.Rptr. 533 and People v. Swanson (1983) 140 Cal.App.3d 571, 189 Cal.Rptr. 547.)

The supplemental probation report prepared in 1991 recommended a sentence of 240 days in county jail.   At the sentencing hearing defense counsel argued for 180 days of jail time and the prosecutor responded that appellant should receive a suspended prison term.   There followed a pause, after which the court made these comments:

“He originally only got 14 days in custody?   This is actually an aggravated possession․  [¶] In light of the fact that he's basically served very little time, I'll go along with the recommendation, but I agree with Mr. Brayton that it's now going to be a suspended prison commitment and in a review and a reading of the prior probation report, given the particular facts of the case that he was found with 4.7 grams of cocaine, 1.4 grams of marijuana and particularly $4,292 of money which he really couldn't account for factually as I read certainly suggests that it should be an aggravated term.”

Relying principally on People v. Molina, supra, appellant argues that the judge's introductory remarks indicate he used an improper standard in determining the sentence.   In Molina the sentencing court engaged in a lengthy discourse on the ineffectiveness of the judicial system in failing to punish defendant sufficiently for past violations.   Having commenced this lecture with the observation that defendant didn't belong in prison, the court concluded by telling him “today you get the full load” and imposing an enhanced prison term.  (74 Cal.App.3d at p. 552, 141 Cal.Rptr. 533.)   On appeal the court found that this sentence reflected punishment which the trial judge believed should have been imposed for past crimes.  Molina concluded that “the [trial] court abused its discretion in imposing a state prison sentence to correct what it perceived to be errors of past overly lenient treatment of Molina by others in the justice system.”  (Id. at p. 553, 141 Cal.Rptr. 533.)

The remarks made by the sentencing judge in our case do not amount to a similar abuse of discretion.   The court indicated at the outset that it considered appellant's crime to be an aggravated possession, then proceeded to recite the circumstances in aggravation before imposing the upper term.   Thus unlike Molina, where the trial court recounted only past treatment of the defendant instead of “impos[ing] sentence ․ on the crimes of which Molina was convicted,” the court here properly focused upon the circumstances of the crime for which appellant was being sentenced.  (Molina, supra, 74 Cal.App.3d at p. 553, 141 Cal.Rptr. 533.)   Any impropriety in the observation that appellant had originally served only 14 days can be considered harmless under the circumstances.

People v. Swanson, supra, is likewise distinguishable.   In that case it was apparent from the judge's remarks that he had initially thought circumstances in aggravation and mitigation warranted a midterm sentence.   But after counsel pointed out that the midterm would be one year, the court imposed the upper term instead and recited only the aggravating circumstances.   In Swanson, the court of appeal found there was a “distinct possibility” the trial court had arbitrarily arrived at a sentence choice based upon a subjective feeling about the length of sentence, and then had reasoned backward to justify the result.   No such possibility appears from the record in our case.   The aggravating and mitigating circumstances in Swanson were in equipoise, indicating that the judge in imposing the aggravated sentence may have taken “a result-oriented approach” to sentencing.  (140 Cal.App.3d at p. 574, 189 Cal.Rptr. 547;  but see People v. Stevens (1988) 205 Cal.App.3d 1452, 1457, 253 Cal.Rptr. 173.)   Here, on the other hand, there were only aggravating circumstances and the imposition of the maximum term was fully justified.

In sum, we are not persuaded that the trial judge's remarks in our case indicated he relied on subjective beliefs about past punishment as a basis for the sentencing choice.   Even if the court's reference to past lenient treatment of appellant could be considered improper, no remand is warranted since the record clearly supports the sentencing decision and there is no reasonable possibility appellant's sentence would be lessened on remand.   (People v. Santana (1982) 134 Cal.App.3d 773, 785, 184 Cal.Rptr. 733;  People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243;  People v. Wright (1982) 30 Cal.3d 705, 714, 180 Cal.Rptr. 196, 639 P.2d 267.)

3. Ineffective Assistance of Counsel

 It is well-established that sentencing is a critical stage of the proceedings, at which a defendant is constitutionally guaranteed the right to effective assistance of counsel.  (In re Perez (1966) 65 Cal.2d 224, 229–230, 53 Cal.Rptr. 414, 418 P.2d 6.)   In general defense counsel is under a duty to ascertain that the sentence is based on complete and accurate information.  (People v. Vatelli (1971) 15 Cal.App.3d 54, 62, 92 Cal.Rptr. 763;  People v. Cropper (1979) 89 Cal.App.3d 716, 719, 152 Cal.Rptr. 555.)

Appellant contends counsel failed to discharge this duty in that she did not submit any circumstances in mitigation for the judge's consideration, did not point out certain claimed inaccuracies in the probation report, and did not familiarize herself with the 1989 file of the case.

“To make a successful claim of ineffective assistance of counsel, the defendant must show that (1) counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms;  and (2) counsel's deficient representation subjected the defense to prejudice, i.e., there is a reasonable probability that but for counsel's failings the result would have been more favorable.”  (People v. Bell (1989) 49 Cal.3d 502, 546, 262 Cal.Rptr. 1, 778 P.2d 129;  Strickland v. Washington (1984) 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674.)

In light of this standard, appellant's claim that counsel failed to offer mitigating circumstances is cognizable only if there actually were mitigating circumstances which might have affected the court's sentencing decision.   Appellant repeatedly refers to the presence of two “undisputed mitigating circumstances,” meaning those suggested by defense counsel during the 1989 proceedings:  1) early admission of guilt and 2) lack of an extensive record.   Appellant argues that since the prosecutor in 1989 raised no objection to the introduction of these mitigating factors at the time, they are undisputed and the People have waived their right to object on appeal.   But no objection was necessary in 1989 since imposition of sentence was suspended and appellant was placed on probation.   Moreover, as we have discussed in Section 1, there is no indication on the record that counsel's arguments for mitigation were accepted by the judge.   And even so, neither the court nor counsel at the 1991 hearing had a duty to obtain and review a record of the prior proceedings, since there was no trial and no preliminary hearing.  (Rules 433(b) and 435(b)(1).)

 Even assuming appellant's attorney had argued the mitigating circumstances which had been suggested by prior counsel, neither one of these factors is valid.   Appellant's early admission of guilt was part of a plea bargain for the dismissal of other charges.   An admission made under those circumstances is not a mitigating factor.  (People v. Holguin (1989) 213 Cal.App.3d 1308, 1318, 262 Cal.Rptr. 331.)   Lack of an “extensive record” is likewise not a proper mitigating factor here.   Presumably counsel was referring to rule 423(b)(1), which provides that the lack of any record or the insignificance of that record, in view of the recentness and frequency of the offenses, is a mitigating circumstance.   Appellant's record did not qualify in either respect.   In 1989, the same year as his conviction for the Health & Safety Code section 11350 violation, appellant had suffered three prior convictions for misdemeanor Vehicle Code violations, including two drunk driving convictions.   The probation report noted that appellant's record showed “a serious criminal pattern” (Rule 414(d)(1).)   No mitigating circumstances were listed.   In sum, because there were no mitigating factors here, counsel was not ineffective in failing to suggest any.

 Nor did counsel fail in her duties in any way by not bringing to the court's attention asserted inaccuracies in the 1989 probation report.   This claim rests upon the erroneous premise that mitigating circumstances existed which were not noted in the report.   Appellant argues further that counsel should have pointed out that the factors in aggravation cited by the court were taken from the probation report's “Criteria Affecting Probation” rather than from the section entitled “Circumstances in Aggravation.”   This claim also has no merit.   When imposing sentence, the court may consider all relevant criteria.  (Rule 408.)   Therefore, it is immaterial that the aggravating factors were listed under a heading other than “Circumstances in Aggravation.”   Moreover, had counsel made the argument appellant now suggests, she would only have succeeded in calling the court's attention to additional factors listed under “Circumstances in Aggravation” in the 1989 report, namely that appellant's crime and substance abuse problems were of increasing seriousness (Rule 421(b)(2)), that his prior performance on probation was unsatisfactory (Rule 421(b)(5)), and that there was a danger of addiction (Rule 414(d)(6)).

 Appellant's final allegation of ineffective assistance of counsel is that counsel failed to review his case file, including the 1989 probation report.   In handing down appellant's sentence the judge stated that in reviewing and reading the 1989 report, and “given the particular facts of the case[,] that [appellant] was found with 4.7 grams of cocaine, 1.4 grams of marijuana and [ ] $4,292.00․  [I]t should be an aggravated term.”   At one point defense counsel interrupted to inform the court:  “Your Honor, we didn't handle the matter, so I can't ․ comment on that.”   When the court had completed its recitation of the aggravating circumstances, counsel reiterated:  “Just so the record's clear, ․ I can't comment upon any of that because we didn't represent him ․ on the probation matter and I don't even have that file.”

Appellant argues, and we agree, that an attorney acting as a diligent advocate at a sentencing hearing has a duty to be familiar with the facts of the crime for which he is being sentenced.   In this case the pertinent information was contained in the probation report.   Any reasonable attorney would have obtained and reviewed the probation report which would form the basis for her client's sentence before proceeding to represent him at sentencing.   The Attorney General suggests that we may presume that defense counsel had a copy of the 1989 probation report.   On this record we are unable to do so, in light of counsel's statements that she was unable to comment on the facts of the crime, had not represented defendant in the probation matter and did not even have the file.

But even if we conclude that counsel's assistance at sentencing fell below professional standards, appellant is unable to show a reasonable probability that a more favorable sentence would have resulted in the absence of counsel's failings.  (Strickland v. Washington, supra, 466 U.S. at pp. 693–695, 104 S.Ct. at pp. 2067–2068;  People v. Vatelli, supra, 15 Cal.App.3d at pp. 62, 64, 92 Cal.Rptr. 763.)   The probation report listed numerous circumstances in aggravation and none in mitigation.   It is therefore extremely unlikely that any different outcome would have resulted had counsel been prepared to comment on the report.  (People v. Fosselman (1983) 33 Cal.3d 572, 584, 189 Cal.Rptr. 855, 659 P.2d 1144.)   We therefore find no prejudice to the defense.

DISPOSITION

The judgment and sentence are affirmed.

FOOTNOTES

1.   We acknowledge the similar views expressed on this subject by the Third District Court of Appeal in an opinion ordered depublished by direction of the California Supreme Court, July 30, 1987.

BAMATTRE–MANOUKIAN, Associate Justice.

CAPACCIOLI, Acting P.J., and PREMO, J., concur.