Filed 12/31/13 P. v. Dimry 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E057451

v.                                                                       (Super.Ct.No. FVA022099)

LONNIE LEEVOY DIMRY,                                                     OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of San Bernardino County. Cara D. Hutson,

Judge. Affirmed.

         Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Teresa Torreblanca and Karl T.

Terp, Deputy Attorneys General, for Plaintiff and Respondent.




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       On June 23, 2005, defendant and appellant Lonnie Leevoy Dimry pled nolo

contendere to one count of home invasion robbery (count 1 – Pen. Code, § 211)1.

Pursuant to his plea bargain, the court sentenced defendant to the aggravated term of nine

years’ imprisonment, with sentence suspended; dismissed the remaining counts charged

against him; and placed defendant on three years’ felony probation. On October 20,

2008, the People filed a third petition for revocation of defendant’s probation. After

numerous suspensions and reinstatements of criminal proceedings due to findings of

defendant’s mental incompetency, the court held a hearing on the People’s petition, found

defendant in violation of his probation, and sentenced him to the suspended term. On

appeal, defendant contends he was denied due process and effective assistance of counsel

when the court sentenced him without argument, without consideration of a current

probation report, and without a statement of reasons. We affirm.

                    FACTUAL AND PROCEDURAL BACKGROUND

       On June 3, 2004, the victims were playing video games in a locked bedroom when

defendant kicked open the door. Defendant was armed with a bat and accompanied by

two other individuals. Defendant demanded money from the victims and became

agitated when they said they did not have any. Defendant took one victim’s wallet and

both victims’ cell phones. Defendant threatened one of the victims with the bat saying “I

should kill you because you’re a Mexican.” The victims reported the incident after


       1   All further statutory references are to the Penal Code unless otherwise indicated.



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defendant left. Defendant was found soon thereafter in possession of the bat and the

stolen property.

       The People charged defendant on June 28, 2004, by information with two counts

of home invasion robbery (counts 1 & 2 – § 211) and one count of criminal threats

(count 3 – § 422). On December 17, 2004, defendant’s counsel expressed a doubt about

defendant’s mental competency to stand trial for further criminal proceedings. On

February 17, 2005, the court found defendant mentally incompetent. On June 9, 2005,

the court found defendant mentally competent.

       On June 23, 2005, defendant pled nolo contendere to one count of home invasion

robbery (count 1 – § 211) in return for dismissal of the remaining counts, suspension of

the aggravated sentence of nine years’ imprisonment, and imposition of three years’

felony probation. Defendant denied all the charges against him to a probation officer

thereafter; defendant said he took the plea because he was tired of going to court.

Defendant admitted using methamphetamine and marijuana. The probation officer

opined, “defendant will most likely not successfully complete a grant of probation if he

discontinues the use of his psychiatric medication.”

       On July 22, 2005, the court sentenced defendant according to his plea. The court

noted, “I want to make sure that [] [defendant] understands that this opportunity he’s

being given on probation is an opportunity that can only be extended to him this one

time. If you run a foul [sic] with probation and violate probation for any reason and find

yourself back here, there won’t be any further discussion about putting you back on



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probation or modifying some terms and conditions or anything else. [¶] Given the

sentence that the Court has stayed execution of today, if you violate probation, []

[defendant], your next stop is state prison for nine years.”

       On October 15, 2007, the People filed a petition for revocation of defendant’s

probation. Defendant had been arrested on September 26, 2007, for contempt of court in

violation of a term of his probation that he violate no law. On January 22, 2008,

defendant waived his right to a hearing and admitted the allegation. The court revoked

and reinstated defendant’s probation.

       On February 5, 2008, the People filed a second petition for revocation of

defendant’s probation. The People alleged defendant violated two terms of his probation:

that he not violate any law and that he always carry valid identification.

       On November 21, 2006, defendant had pled guilty to battery. On April 16, 2007,

defendant was investigated by police for disobeying a condition of his probation in the

battery case that he not annoy or harass the victim. Defendant called her four times; the

victim reminded him of the restraining order; defendant then showed up at her work; and

the victim called police.

       On December 26, 2007, defendant was investigated by police when a call was

made regarding a suspicious person loitering. When contacted, defendant gave a false

name to the officer, reported he was living at the residence, but could not remember the

name of the individual with whom he was living, and admitted trying to enter the home

through the front and side doors. Defendant had no identification with him at the time.



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On December 27, 2007, defendant pled guilty to possession of less than an ounce of

marijuana and giving false information to a police officer.

          The court referred the case to the probation office for the preparation of a

supplemental probation officer’s report. Defendant admitted all the allegations to the

probation officer; however, defendant contended he had been dropped from his parents’

insurance plan and lost access to psychiatric medication; thus, he was hearing voices and

was complying with them in committing some of the offenses. The probation officer

recommended defendant’s probation remain revoked and the court sentence him to the

suspended nine-year sentence.

          At the hearing on the People’s petition on April 17, 2008, the court reinstated

probation for an additional five years, adding an additional term. The court observed,

“[y]ou got kind of a break here. You’ve got a huge amount of time hanging over your

head. There’s a nine-year suspended sentence hanging over your head.”

          On October 20, 2008, the People filed a third petition for revocation of

defendant’s probation. Defendant had been arrested on October 15, 2008, for felony

burglary. In a probation report dated November 18, 2008, the probation officer reported

defendant had been arrested after voices told him to steal a shirt while he was cold and

homeless. Defendant stated he had mental issues, was schizophrenic, could not function

properly, had been off his medication for months, and heard voices telling him to hurt

others.




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       The officer opined, “[t]he defendant is once again before the court and once again

blaming his mental illness for his wrong doings [sic]. He insists he cannot be trusted

when off his medications, as the voices tell him to harm others, yet he is not taking the

medications which settle those voices, once more at no fault of his own. The defendant

has been given multiple opportunities to comply with the terms and conditions of his

probation; probation has been reinstated despite his state prison suspended sentence. Still

he continues to commit crimes and takes no responsibility in the matter. It is only a

matter of time before he listens to those voices and causes harm to another instead of just

stealing a shirt. Despite the Court[’]s numerous attempts to allow the defendant to get the

appropriate help to deal with his mental health issues he refuses the help.” The officer

recommended defendant’s probation be revoked and his nine-year suspended sentence be

imposed.

       On March 10, 2009, the date for defendant’s scheduled probation revocation

hearing, the court committed him to Patton State Hospital until his mental competence

was restored. On October 6, 2009, the court found defendant had regained mental

competency and reinstated criminal proceedings. On April 5, 2010, the court found

defendant mentally incompetent again. On October 26, 2010, counsel stipulated

defendant had regained mental competency; the court reinstated criminal proceedings.

       On November 23, 2010, based upon consideration of a psychologist’s report and

the stipulation of counsel, the court found defendant mentally incompetent and suspended

criminal proceedings. On July 22, 2011, after having read a report submitted from Patton



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State Hospital, the court found defendant mentally competent to stand trial for further

criminal proceedings.

       On July 29, 2011, the court held the hearing on the People’s petition for revocation

of defendant’s probation. Nichole Huber, a loss prevention agent for Target in Montclair,

testified that on October 15, 2008, she was notified someone was selecting pieces of

clothing and ripping off the tags. She turned her attention to the individual via the store’s

closed circuit television system; it was defendant. Defendant selected two T-shirts,

ripped off the tags, and exited the store without paying for them.

       Jacob Riedell, a Montclair police officer, was dispatched to Target in response to

the reported theft. After Riedell read defendant his rights, defendant said he stole some

T-shirts and got caught. Defendant reported having only $0.75 on him at the time and

intending to steal the shirts when he entered the store. The court found defendant in

violation of his probation and sentenced defendant to nine years’ incarceration with

custody credit of 1,482 days.

                                       DISCUSSION

       Defendant contends counsel’s failure to request, and the court’s neglect in

requiring, the preparation of a supplemental probation officer’s report prior to the court’s

dispositional determination deprived him of constitutionally requisite effective assistance

of counsel and due process. Specifically, defendant argues it had been nearly three years

since the last probation officer’s report was prepared, counsel for defendant made no

argument for any other disposition, defendant apparently suffered from severe mental



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illness, and the court failed to elucidate any reason for imposing the nine-year sentence.

Thus, defendant was prejudiced by the lack of a current probation officer’s report because

the court appeared unaware of its discretion to reinstate probation. We disagree.

        “We review a probation revocation decision pursuant to the substantial evidence

standard of review [citation], and great deference is accorded the trial court’s decision,

bearing in mind that ‘[p]robation is not a matter of right but an act of clemency, the

granting and revocation of which are entirely within the sound discretion of the trial

court. [Citations.]’ [Citation.] [¶] ‘The discretion of the court to revoke probation is

analogous to its power to grant the probation, and the court’s discretion will not be

disturbed in the absence of a showing of abusive or arbitrary action. [Citations.]’

[Citation.] . . . ‘“[O]nly in a very extreme case should an appellate court interfere with

the discretion of the trial court in the matter of denying or revoking probation. . . .”’

[Citation.] And the burden of demonstrating an abuse of the trial court’s discretion rests

squarely on the defendant. [Citation.]” (People v. Urke (2011) 197 Cal.App.4th 766,

773.)

        When making a determination on whether to reinstate probation, a court errs by

not ordering the preparation of a supplemental probation officer’s report when the

previous probation officer’s report is more than six months old, especially when the

defendant has not been in custody. (People v. Dobbins (2005) 127 Cal.App.4th 176,

181.) Failure to order the preparation of a supplemental probation officer’s report is




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reviewed under the Watson2 harmless error standard, i.e., whether there is a reasonable

probability of a result more favorable to defendant if not for the error. (Id. at pp. 182-183

[Failure to prepare supplemental probation officer’s report harmless error.].)

       We agree the court should have ordered a supplemental probation officer’s report

prepared in advance of the hearing on revocation of defendant’s probation. However, we

hold defendant suffered no prejudice. Here, two prior probation officers’ reports already

recommended previous courts revoke defendant’s probation and sentence him to the

nine-year suspended term, one under a prior petition for revocation of defendant’s

probation. Defendant remained in custody since the last probation officer’s report. It

strains credulity to believe another report would have reflected more favorably on him.

       To the extent defendant contends information contained in a supplemental

probation officer’s report would have informed the sentencing court of mitigating

information occurring over the past few years relevant to sentencing, we note this court

was already intimately familiar with the details of defendant’s life during this period.

The sentencing court first presided over a hearing on January 25, 2010, when the case

was continued. It was the only court to hear the case from that date until its completion.

The court considered multiple reports by health care professionals relevant to the mental

competency hearings before it.3 The court made multiple rulings based upon those

reports. Thus, the sentencing court had far more information regarding defendant’s

       2   People v. Watson (1956) 46 Cal.2d 818, 836.

       3   These reports are not a part of the record on appeal.


                                               9
mental illness and progress during this period than has either counsel on appeal or this

court.

         As to defendant’s ineffective assistance of counsel claim, we note it is defendant’s

burden to demonstrate the inadequacy of counsel in that counsel’s performance was both

deficient and prejudicial. “If the record on appeal ‘“‘sheds no light on why counsel acted

or failed to act in the manner challenged[,] . . . unless counsel was asked for an

explanation and failed to provide one, or unless there simply could be no satisfactory

explanation,’ the claim on appeal must be rejected,”’ and the ‘claim of ineffective

assistance in such a case is more appropriately decided in a habeas corpus proceeding.’

[Citation.]” (People v. Vines (2011) 51 Cal.4th 830, 875-876.) Here, defense counsel

argued the court should not find defendant in violation of his probation. However, after

the court found defendant in violation of his probation, the record fails to show why

defense counsel failed to request the preparation of a supplemental probation officer’s

report or argue for a lesser disposition. Nevertheless, we observe she could readily have

determined such efforts would have been futile. Thus, it is not reasonably probable a

result more favorable to defendant would have been obtained had the court ordered a

supplemental probation officer’s report.




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                                 DISPOSITION

     The judgment is affirmed.

     NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                               RAMIREZ
                                                         P. J.
We concur:



HOLLENHORST
                       J.



CODRINGTON
                       J.




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