Filed 4/16/13 P. v. Chiono CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H037816
                                                                    (Monterey County
         Plaintiff and Respondent,                                   Super. Ct. No. SS102433)

         v.

WYONA ANTIONETTE CHIOINO,

         Defendant and Appellant.


         Defendant Wyona Antionette Chioino pleaded no contest to possession of cocaine
base for sale. She negotiated the plea on condition that the trial court place her on felony
probation. The trial court suspended imposition of sentence and placed defendant on
probation with conditions. It later revoked probation and sentenced defendant to an
upper term of five years. On appeal, defendant contends that (1) the trial court abused its
discretion in revoking probation and imposing sentence, and (2) she received ineffective
assistance of counsel because counsel failed to object to the stated grounds for imposing
an upper term. We affirm the judgment.
                                         FACTUAL BACKGROUND
         On October 26, 2010, the Seaside Police Department conducted surveillance at
America‟s Best Value Inn Seaside South Motel (motel), after receiving information
regarding drug sales. The surveillance revealed that defendant and her boyfriend,
William Jennings Hill, were selling drugs out of the motel. A lawful search warrant was
obtained and the officers arrested defendant and Hill in their motel room. Defendant was
in possession of approximately 1.5 grams of cocaine base. On the way to the police
department, defendant further confided that she was hiding cocaine rocks inside her
brassiere. Defendant was charged with possession of a controlled substance, possession
of a controlled substance for sale, and conspiracy to commit a felony.
       The officer‟s summary indicated the following: “That probable cause existed to
believe that [defendant] and Hill conspired to sell cocaine base, and possessed cocaine
base, for the purpose of sales. The conclusion was based on the following facts:
Presence of known drug users coming to [defendant‟s] and Hill‟s room, lack of means to
show lawful sources of income, lack of paraphernalia, the presence of three cell phones,
incriminating statements that were made during questioning, a lack of drug use
paraphernalia, a lack of visible signs of drug use.”
       At the plea hearing on February 2, 2011, the trial court advised defendant that the
maximum penalty that could be imposed was five years in prison, followed by three years
on parole. Defendant pleaded no contest in exchange for felony probation and was
released on a Cruz1 waiver.
       At the sentencing hearing on May 11, 2011, the trial court stated the following:
“It‟s not often I see a probation officer so adamant about sending someone to prison.
And it‟s that--that attitude is never going to go away. It‟s going to stay with this case.
So, I‟m going to give you conditions of probation and if you violate them you can expect
that attitude to be expressed again, and probably by more than one person in this
courtroom. . . . [¶] . . . [¶] . . . I put a note here--in fact, I‟ve put it in a couple of different
places. And the note basically says that I informed you today that a violation of
probation in all likelihood is going to result in a prison commitment.” The trial court
then suspended imposition of sentence and imposed various terms and conditions of
       1
        People v. Cruz (1988) 44 Cal.3d 1247 (immediate release in exchange for
promise to appear for sentencing; failure to appear risks losing the beneficial plea deal).


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probation, including that defendant report to probation within three days of her release
from custody and also report any change of address or telephone number to probation
within 24 hours.
       On September 28, 2011, the probation officer filed a petition alleging that
defendant had violated probation by failing to report earlier in the month and provide
probation with a current address and phone number. At the hearing on October 26,
defendant admitted the violations and the trial court revoked probation. In a
supplemental report for sentencing, the probation officer recommended that probation be
denied and that defendant be sentenced. The probation officer also noted that defendant
was presumptively ineligible for probation by virtue of her two prior felony convictions.
       On November 30, 2011, at sentencing, the trial court declined to reinstate
probation and sentenced defendant to county jail for an upper term of five years. The
trial court explained as follows: “So, the first question is whether or not to continue you
on probation. I mean, I think the probation officer‟s insight is stated simply. „The
defendant performed miserably with all agencies. It is felt that the limited resources that
are available, that they should be spent on defendants worthy of those resources and not
wasted on someone that Probation and the Court has to chase down.‟ [¶] You‟ve been in
the system. You know the system. We don‟t have the resources to try and deal with you.
You‟re not interested in it. So, probation is terminated. That‟s the first question to
answer. [¶] And then the question about what term. With your record and the
sophisticated nature of this offense, it‟s--it can only be upper term. There are no
circumstances in mitigation, none. Your performance on probation, on parole, has been
miserable. . . . [¶] The Court does impose the upper term.”
                                      SENTENCING
       Probation is a matter of clemency, not of right. (People v. Covington (2000) 82
Cal.App.4th 1263, 1267.) Penal Code section 1203.2, subdivision (a), authorizes the trial

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court to revoke probation after proper notice and a hearing “if the interests of justice so
require and the court, in its judgment, has reason to believe from the report of the
probation or parole officer or otherwise that the person has violated any of the conditions
of his or her supervision . . . .” Once a court had determined that a violation of probation
has occurred, it must “decide whether under all of the circumstances the violation of
probation warrants revocation.” (People v. Avery (1986) 179 Cal.App.3d 1198, 1204.)
The trial court is vested with broad discretion in determining whether to reinstate
probation following revocation of probation (People v. Jones (1990) 224 Cal.App.3d
1309, 1315), and the trial court‟s decision to revoke probation is reviewed for an abuse of
discretion. (People v. Rodriguez (1990) 51 Cal.3d 437, 443 (Rodriguez); People v.
Downey (2000) 82 Cal.App.4th 899, 909-910.) “ „[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. . . .‟ ” (Rodriguez, supra, at p. 443.)
       Here, defendant does not contest the sufficiency of the evidence to support the
finding that she violated probation; she admitted the violation. Rather, defendant
contends that the trial court abused its discretion when it denied reinstatement of
probation. She claims that there was no meaningful exercise of discretion by the trial
judge because he had already decided to revoke probation before entertaining argument
from counsel. She urges that there is a reasonable probability of a more favorable
outcome on a proper exercise of discretion. There is no merit to defendant‟s contention.
       In considering whether to revoke probation, the court‟s inquiry is broader than the
mere circumstances of the violation; it is directed, generally, to the probationer‟s
performance on probation. (People v. Beaudrie (1983) 147 Cal.App.3d 686, 691.) “Thus
the focus is (1) did the probationer violate the conditions of [her] probation and, if so, (2)
what does such an action portend for future conduct?” (Ibid.)



                                              4
          Defendant had admitted to violating probation, and the trial court considered the
probation officers insight before coming to its conclusion. We reiterate that the probation
officer‟s supplemental report stated that defendant had “performed miserably with all
agencies.” And defendant‟s criminal record consisted of six convictions since 1987,
including three felony convictions. Moreover, the probation officer recommended denial
of probation, pointed out that defendant was presumptively ineligible for probation, and
opined that defendant‟s prior performance on probation and parole were “deplorable.” In
addition, the trial court articulated that it was making a sentencing choice rather than a
predetermined fiat by announcing, “[s]o, the first question is whether or not to continue
you on probation.” It also asked for sentencing recommendations. It opined that
defendant had performed miserably on probation. And it concluded that defendant was
unsuited for probation: “We don‟t have the resources to try to deal with you. You‟re not
interested in it. So, probation is terminated.”
          The trial court‟s request for counsels‟ sentencing recommendations and the
consideration of defendant‟s entire record and evidence refutes defendant‟s assertion that
the trial court had predetermined that it would impose a prison sentence.
          In short, the trial court‟s consideration of the record and statements belie
defendant‟s claim that the trial court did not exercise discretion.
                        INEFFECTIVE ASSISTANCE OF COUNSEL
          “Under both the Sixth Amendment to the United States Constitution and article I,
section 15, of the California Constitution, a criminal defendant has the right to the
assistance of counsel.” (People v. Ledesma (1987) 43 Cal.3d 171, 215.) That right
“entitles the defendant not to some bare assistance but rather to effective assistance.”
(Ibid.)
          “To establish constitutionally inadequate representation, a defendant must
demonstrate that (1) counsel‟s representation was deficient, i.e., it fell below an objective

                                                 5
standard of reasonableness under prevailing professional norms; and (2) counsel‟s
representation subjected the defendant to prejudice, i.e., there is a reasonable probability
that, but for counsel‟s failings, the result would have been more favorable to the
defendant. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058; see Strickland v.
Washington (1984) 466 U.S. 668, 687-696.) „When a defendant on appeal makes a claim
that his counsel was ineffective, the appellate court must consider whether the record
contains any explanation for the challenged aspects of representation provided by
counsel. “If the record 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,‟ [citation], the contention must
be rejected.” ‟ ” (People v. Samayoa (1997) 15 Cal.4th 795, 845.)
       Defendant bears a burden that is difficult to carry on direct appeal. (People v.
Lucas (1995) 12 Cal.4th 415, 436.) Our review is highly deferential; we must make
every effort to avoid the distorting effects of hindsight and to evaluate the challenged
conduct from counsel‟s perspective at the time. (In re Jones (1996) 13 Cal.4th 552, 561;
Strickland v. Washington, supra, 466 U.S. at p. 689.) A court must indulge a strong
presumption that counsel‟s acts were within the wide range of reasonable professional
assistance. (Strickland v. Washington, supra, at p. 689; People v. Hart (1999) 20 Cal.4th
546.) The burden is to establish the claim not as a matter of speculation but as a matter of
demonstrable reality. (People v. Garrison (1966) 246 Cal.App.2d 343, 356.) As to the
failure to object in particular, “[a]n attorney may choose not to object for many reasons,
and failure to object rarely establishes ineffectiveness of counsel.” (People v. Kelly
(1992) 1 Cal.4th 495, 540.)
       Defendant contends that she was deprived of her right to effective assistance of
counsel and was prejudiced by her attorney‟s failure to object to the two principal stated



                                              6
grounds for imposing the upper term: her criminal record and the sophistication of the
crime. We disagree.
          “In determining the appropriate term, the court may consider the record in the
case, the probation officer‟s report, other reports, . . . and statements in aggravation or
mitigation.” (Pen. Code, § 1170, subd. (b).) Here, the probation officer‟s report listed
three aggravating factors: (1) the defendant had served two prior prison terms, (2) the
manner in which the crime was carried out indicates planning, sophistication, or
professionalism, and (3) the defendant‟s prior performance on probation and parole were
unsatisfactory. The report listed no mitigating factors relating to the crime and one
mitigating factor relating to the defendant (defendant voluntarily acknowledged
wrongdoing at an early stage of the criminal process).
          Defendant argues that the trial court‟s first stated reason for imposing the upper
term, her criminal record, was not directed to any particular point. She adds that her
crimes neither involved violence nor increasing seriousness.
          But the probation reports and the court file establish defendant‟s extensive
criminal record. Defendant had served two prior prison terms and had six convictions
since 1987, three of which were felonies. In light of this background, the trial court could
have reasonably cited the defendant‟s record as a basis for an upper term and trial counsel
could have elected not to object to the upper term because objection would have been
futile.
          Defendant next argues that the trial court‟s second stated reason for imposing the
upper term, that the underlying crime was sophisticated, was not supported by the
evidence because it was a “garden-variety” possession-for-sale crime.




                                                7
       But the sophistication of the crime was supported by the probation reports and the
record. Defendant had profitably sold cocaine to customers from a motel room. 2 Thus,
the trial court reasonably decided that the sophistication of the crime warranted an upper
term sentence and trial counsel could have elected not to object to the upper term because
objection would have been futile.
       Furthermore, the probation report described and the trial court articulated a third
aggravating factor not challenged by defendant on appeal, i.e., that defendant‟s history
and performance on probation and parole were “unsatisfactory” and “miserable.” Thus,
trial counsel could have refrained from objecting to the upper term because this third
factor was indisputable and sufficient to support an upper term.
       Defendant simply fails to demonstrate deficient performance.
                                      DISPOSITION
       The judgment is affirmed.




       2
        The probation report indicated that defendant‟s motel bill for her three month‟s
stay exceeded $4,000 but that she could not show a lawful source of income.


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                        Premo, J.




WE CONCUR:




    Rushing, P.J.




    Elia, J.




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