Filed 9/24/13 P. v. Qualls CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                   FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                        F062679
         Plaintiff and Respondent,
                                                                          (Super. Ct. No. F08903851)
                   v.

BRYAN DAVID QUALLS,                                                                  OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Rosendo
Peña, Judge, and Brant K. Bramer, Commissioner.†
         Roger Nuttall for Defendant and Appellant.
         Kamala D. Harris, 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.
                                                        -ooOoo-

*        Before Poochigian, Acting P.J., Detjen, J., and Franson, J.
†      Judge Peña presided over appellant’s change of plea and placed him on probation.
Commissioner Bramer sentenced appellant to prison after he was found in violation of
probation.
                                    INTRODUCTION
       On September 18, 2008, appellant, Bryan Roger Qualls, pled guilty to one count
of elder abuse (Pen. Code, § 368, subd. (b)(1))1 and admitted an enhancement for
committing his offense on someone 70 years of age or older (§ 368, subd. (b)(3)(B)). A
psychiatric evaluation was made of appellant prior to sentencing pursuant to Evidence
Code section 460. On February 27, 2009, the trial court suspended imposition of
sentence for five years and placed appellant on probation upon various terms and
conditions, including that he spend 365 days in jail.2
       On March 11, 2011, appellant waived his right to a contested hearing and admitted
that he violated the terms and conditions of his probation. On April 6, 2011, the trial
court denied appellant’s request for reinstatement of probation and sentenced him to
prison for nine years and granted custody credits of 736 days. The court denied
appellant’s request for a certificate of probable cause.
       Appellant contends the prosecutor misled the trial court concerning the sentencing
option of having appellant waive his right to custody credits in exchange for a one-year
commitment to county jail. Appellant argues the court should have considered this
sentencing option. Appellant also contends his trial counsel was ineffective for failing to
argue this sentencing option.3 We disagree with these contentions and affirm the
judgment.

1      Unless otherwise noted, all statutory references are to the Penal Code.
2      The court noted its concerns over appellant’s use of drugs and alcohol as well as
appellant’s ability to take the medication he needed to avoid going into a manic state.
The court informed appellant that he was being given the opportunity for probation “only
once.” Among appellant’s conditions of probation were that he obey all laws, report to
his probation officer upon his release from custody, maintain contact with his probation
officer, not use alcohol or drugs without a lawful prescription, and submit to substance
abuse testing.
3       Appellant initially contends, and respondent concedes, that he does not need a
certificate of probable cause to raise a sentencing issue. We agree with the parties. The


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                             FACTS AND PROCEEDINGS
Circumstances of Offense
       On February 21, 2008, appellant took his 88-year-old grandmother out of a
rehabilitation hospital to his mother’s residence and reportedly left her on the back patio.
Appellant returned 15 to 20 minutes later and found his grandmother floating face down
in the swimming pool. She was declared dead by drowning. Police found a bruise on the
victim. Investigators also learned that appellant chuckled during a telephone call to the
911 operator.
       The victim suffered from advanced dementia, anxiety, and a variety of age-related
ailments. She was not able to propel herself in her wheelchair. Appellant told
investigators that he was inside the house with the victim. Appellant gave the victim a
glass of wine and left her alone inside the house for 15 minutes to go to a nearby fruit
stand. Appellant found the victim in the pool, took her out, and unsuccessfully tried to
revive her before calling 911. Appellant told investigators that the victim liked to go
outside. Appellant made statements to family members suggesting that he had acted
intentionally because the victim was a burden on his mother and it was a mercy killing.
Initial Psychological Evaluation
       Appellant was diagnosed with bipolar disorder and was seeing a psychiatrist who
prescribed medication. Prior to sentencing, appellant was evaluated by Dr. Harold

requirement of a certificate of probable cause does not apply where the defendant raises
sentencing issues unrelated to integral aspects of the terms of the plea agreement.
(People v. Johnson (2009) 47 Cal.4th 668, 678.)
        The terms of the plea agreement did not affect appellant’s sentence unless the
court denied probation, in which case appellant would receive a prison term of four years.
Here, Judge Peña initially granted probation and suspended imposition of sentence.
Appellant was not sentenced to a prison term until after Commissioner Bramer found him
in violation of the conditions of his probation and denied reinstatement of probation.
Appellant’s prison sentence is an appealable order of the trial court that does not require a
certificate of probable cause.



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Seymour pursuant to Evidence Code section 460. Dr. Seymour reported that appellant’s
only prior criminal history involved incidents when he was found sleeping overnight in a
state park and when he was contacted by an officer and left when his dog tried to run
away. Appellant completed his education through a master’s degree.
       Dr. Seymour’s evaluation of appellant found him to be naïve. Dr. Seymour did
not find appellant to be a malingerer. Appellant showed signs of mania and depression.
Dr. Seymour noted that appellant did not acknowledge having certain experiences such as
hallucinations except for one time. Dr. Seymour had difficulty finding positive
correlations with any type of mental disorder and noted that the Personality Assessment
Instrument test given to appellant showed no resemblance to individuals suffering from
bipolar disorder.
       Dr. Seymour found that appellant suffered from alcohol and cannabis abuse, as
well as “Bipolar Disorder, Type I, manic type, by history.” Appellant also showed signs
of schizotypal personality traits. Dr. Seymour concluded appellant was not a threat to
himself or others, was fragile, and in need of treatment. Dr. Seymour concurred with
appellant’s psychiatrist who believed appellant required intensive therapy twice a week.
Dr. Seymour further noted that appellant needed to remain free of drugs and alcohol.
Violation of Probation
       After serving time in custody, appellant met with his probation officer on October
22, 2009. Appellant was given his probation instructions and a mental health referral to
contact the Fresno County Mental Health Office by November 6, 2009. Appellant met
with his probation officer on January 7, 2010, and stated he was attending monthly
therapy.
       On August 20, 2010, appellant reported to his probation officer that he missed an
appointment on August 17, 2010, because his vehicle had been stolen three days earlier in
San Francisco. When the probation officer asked appellant if he had recently used any
illicit drugs, appellant replied that he had been offered a cookie containing marijuana.

                                             4.
Appellant said he had smoked marijuana about a month earlier because he was out of
medication. Appellant was given a drug testing schedule and told to test between August
20, 2010, and October 26, 2010. Appellant initially refused to test, but 20 minutes later
appellant submitted a negative urine test. Thereafter, appellant stopped testing.
       On September 17, 2010, the probation officer could not find appellant at home at
his address of record. The probation officer sent appellant a written notice to meet on
October 1, 2010. Appellant failed to appear for the appointment. The probation officer
obtained a bench warrant in late October 2010 and appellant was arrested on December 2,
2010, for being out of contact with his probation officer. Appellant had also failed to
drug test during this interval. The probation officer recommended that probation not be
reinstated and that appellant be committed to prison for two years for elder abuse with a
consecutive term of seven years for the elder abuse enhancement.
Second Psychological Evaluation
       Dr. Seymour again evaluated appellant on March 15, 2011. Appellant admitted he
had used marijuana. Appellant told Dr. Seymour that he had entered a manic phase in
which he became obsessed with solving mathematical equations and was in what he
called a messianic mode of functioning. This led appellant to miss his drug testing
appointments and he was taken into custody in December 2010.
       Dr. Seymour noted appellant had a diagnosis for Bipolar Disorder, Type 1.
Appellant had been prescribed Abilify by his psychiatrist and, more recently, Risperdal.
Appellant had a history of inconsistent compliance with taking his prescribed medication.
Appellant did not consistently take Risperdal because it made him tired and would only
take it if he began feeling manic. Although appellant’s psychiatrist had recommended
monthly psychiatric medication management and psychotherapy twice a week, and
appellant had been referred to the Fresno County Mental Health Office, appellant did not
pursue that referral. Appellant did continue to see his psychiatrist, although he failed to
obtain psychotherapy.

                                             5.
       Appellant was not currently receiving his prescribed medication and stated that
only Paxil is prescribed in the jail. Appellant was experiencing cyclical mood shifts, but
his baseline mood was depressed. Appellant reported that he did better during his time in
jail than when he was in a mental health pod, which he found traumatizing. Appellant
denied becoming psychotic in jail. Dr. Seymour noted that marijuana use can exacerbate
bipolar symptoms. Dr. Seymour’s diagnostic impression was that appellant suffered
from Bipolar Disorder, Type I, manic, with moderate severity and a history of psychotic
symptoms. Dr. Seymour further found appellant suffered from cannabis abuse.
       Dr. Seymour concluded that appellant was showing better insight into his bipolar
diagnosis than when he previously saw Dr. Seymour and had a better understanding of
the need for treatment compliance. In the past, appellant had used his intelligence to
rationalize his treatment choices, but this had led to the wrong conclusion and resulted in
his use of marijuana and failure to comply with probation. Dr. Seymour did not believe
appellant had a criminal orientation and his failure to comply with probation conditions
was not a function of disrespect or disregard of probation requirements. Dr. Seymour
attributed appellant’s choices as a result of his disordered thinking, which is a feature of
his illness and lack of adequate treatment. Dr. Seymour recommended that appellant be
returned on probation and placed on a Comprehensive Alcohol Program (CAP). In the
CAP, appellant would be placed in a 30-day residential treatment program with aftercare
treatment.
Sentencing Hearing
       At the sentencing hearing on April 6, 2011, the court initially stated it had
reviewed documentation from Alternative Sentencing Choices. Defense counsel argued
that appellant could be placed in the New Life Community Services treatment facility and




                                              6.
the court could reinstate appellant’s probation. Defense counsel explained that
appellant’s parents were willing to take appellant to treatment and to pay for the cost.4
       The prosecutor noted when Judge Peña placed appellant on probation, he warned
appellant that he would only get one chance for probation. The prosecutor stated
appellant was noncompliant on probation and would continue to remain noncompliant
should probation be reinstated. The prosecutor argued there was no one who could
promise that appellant would take his medications and obtain treatment because appellant
had previously failed to take medications and participate in treatment.
       The prosecutor further argued that Judge Peña placed appellant in county jail for
365 days with the contemplation he would remain incarcerated the entire time, and “there
would be no local alternative if he messed up.” The prosecutor stated, “[s]o I’m certainly
not in any way, shape or form comfortable with any time waivers or that type of stuff.”
The prosecutor referred to three attempts made by appellant for modification of his
probation during his incarceration in jail, but Judge Peña denied those requests. The
prosecutor argued there was no local alternative available to appellant because he had
served as much local time as he could. The prosecutor believed the “only proper thing
for the court to do is to sentence [appellant] to prison.”
       The prosecutor dismissed the psychological reports as irrelevant to the issue of
proper punishment and asked the court to sentence appellant to prison because he was
noncompliant, absconded from probation, and did not take drug tests. The court noted
that appellant had “a ton” of time credits and asked the prosecutor about a local
alternative. The prosecutor again stated there was none.
       The court noted that appellant was not taking his medication, running out of
medication and using marijuana, and failing to drug test. The court called this a

4   According to information in the Alternative Sentencing Report, the New Life
Community Services treatment facility is an inpatient program.



                                              7.
conscious decision by appellant because he knew he was going to test dirty. The court
noted it had no doubt appellant suffered from a mental illness, and he had been given
every opportunity to deal with those issues but decided not to do what he was supposed to
do. The court noted this was a very serious case and appellant had been given the
opportunity to deal with his issues and failed to do so.
       Defense counsel argued that appellant now accepts his mental illness, understands
the consequences, and is now doing better mentally. Defense counsel argued appellant
was a bright person with a mental illness. Counsel asked the court to return appellant “to
[p]robation, to waive his time credits, have those hang over his head and give him this
year or so of treatment, and give his family the opportunity to … monitor him.”
       The prosecutor responded that appellant already had a prison sentence hanging
over his head and failed to comply with the terms of probation. The prosecutor was
further concerned with placing appellant on family monitoring because it placed a burden
on appellant’s family to contact probation if appellant was in noncompliance with his
conditions of probation.
       The court stated it could not make appellant’s family his probation officers and
noted that appellant’s problem was he “violated probation here in such a way that I don’t
believe that I can put you back on probation.” The court further stated that appellant
continued to do things even when he knew they were wrong. The court observed
appellant was doing well in jail for four months and the court could not ignore that fact.
The court found appellant was not a suitable candidate for further grants of probation and
sentenced him to prison.
                                      DISCUSSION
Prosecutor’s Sentencing Argument
       Appellant contends the prosecutor misled the trial court by arguing that appellant
was not entitled to local time, there were no local sentencing alternatives for appellant,
and the only option for the trial court was to sentence appellant to prison. Appellant’s

                                             8.
argument is based on People v. Johnson (1978) 82 Cal.App.3d 183, 185-188 (Johnson),
which held that where a defendant has already spent time in county jail and thereafter
commits a violation of probation, the trial court is not faced with only two choices: (1)
ignoring the probation violation; or, (2) a state prison sentence. The court may choose
the third alternative of permitting the defendant to waive any custody credits and commit
the defendant to county jail again for up to a year. (Ibid.) We reject this contention.
       We begin our analysis with the general rule that the trial court is presumed to have
been aware of and followed the applicable law. (People v. Stowell (2003) 31 Cal.4th
1107, 1114; People v. Mosley (1997) 53 Cal.App.4th 489, 496-497.) Under Evidence
Code section 664, there is also a legal presumption that official duties are regularly
performed.
       Appellant is correct that the prosecutor argued there was no local alternative to a
state prison sentence. Appellant has taken the prosecutor’s argument out of context. The
prosecutor argued that Judge Peña had placed appellant in county jail for 365 days with
the contemplation he would remain incarcerated the entire time, and “there would be no
local alternative if he messed up.” The prosecutor further stated, “[s]o I’m certainly not
in any way, shape or form comfortable with any time waivers or that type of stuff.”
(Emphasis added.) Time waivers are used in the context of the procedure set forth in the
Johnson case. During argument, defense counsel did request that the trial court permit
appellant the opportunity to waive his custody credits. The prosecutor did not mislead
the trial court on sentencing alternatives and, in effect, discussed the Johnson procedure
in his argument as a legal alternative that should be rejected.
       Furthermore, read within the context of his entire argument, the prosecutor did not
want appellant placed in any local alternative to prison because appellant had failed to
obtain proper treatment for his mental illness, failed to drug test, failed to regularly meet
with his probation officer, and failed to participate in psychotherapy as recommended by
his own evaluating psychologist, Dr. Seymour. The prosecutor argued that the only

                                              9.
proper sentence for appellant was a state prison sentence. In so arguing, the prosecutor
was not misleading the trial court but was asking the court to reject local sentencing
alternatives, including the Johnson procedure that the prosecutor referenced in his
opening argument to the court.
       Appellant argues that the trial court was still misled as to local alternatives for
sentencing because when the court inquired of the prosecutor, the prosecutor replied that
there were no local sentencing alternatives. Again, as we read the record, it is clear that
not only the prosecutor, but the trial court was concerned about the conscious decisions
appellant made to violate his probation. In this context, the trial court concluded that
local sentencing alternatives were not adequate in appellant’s case because appellant
failed to comply with the terms of his probation, including receiving treatment for his
mental health issues.
       We find that on the record, read as a whole, the prosecutor, defense counsel, and
the trial court were aware of the Johnson procedure as a sentencing alternative. We
further find that given appellant’s failure to comply with the conditions of probation and
the seriousness of the offense, the trial court would not have considered any sentencing
alternative to appellant’s commitment in state prison.
Alleged Ineffectiveness of Trial Counsel
       Appellant argues that his trial counsel was ineffective for failing to rebut the
prosecutor’s argument that there was no local alternative to a prison sentence. We do not
find this argument persuasive.
       The defendant has the burden of proving ineffective assistance of trial counsel. To
prevail on a claim of ineffective assistance of trial counsel, the defendant must establish
not only deficient performance, which is performance below an objective standard of
reasonableness, but also prejudice. A court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.
Tactical errors are generally not deemed reversible. Counsel’s decisionmaking is

                                             10.
evaluated in the context of the available facts. To the extent the record fails to disclose
why counsel acted or failed to act in the manner challenged, appellate courts will affirm
the judgment unless counsel was asked for an explanation and failed to provide one, or,
unless there simply could be no satisfactory explanation. Prejudice must be affirmatively
proved. The record must affirmatively demonstrate a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
(People v. Maury (2003) 30 Cal.4th 342, 389.)
       We do not find that defense counsel’s request for reinstatement of probation falls
below an objective standard of reasonableness. It appears to be a reasonable tactical
choice within normal professional practice.5 Indeed, it appears that all of the parties were
aware of the Johnson procedure as a sentencing alternative, even if it was not so
denominated by the prosecutor or defense counsel during their arguments at the
sentencing hearing. Under the facts of this case, we do not view defense counsel’s failure
to argue for the Johnson procedure to fall below the objective standard of reasonable
professional norms. This is especially the case where defense counsel proposed a local
placement alternative to a prison sentence, discussed the possibility that appellant waive
his custody credits, and the evaluating psychologist recommended a local CAP program
in lieu of a state prison sentence.
                                      DISPOSITION
       The judgment is affirmed.




5      Even if counsel’s tactics during the hearing could be categorized as a tactical error,
such errors are not usually deemed reversible.



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