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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                                     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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