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Filed 3/30/22 P. v. Dennisbellairs CA3 Opinion follo wing rehearing NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Butte)

----

THE PEOPLE,

Plaintiff and Respondent,

v.
JOSHUA LOUIS DENNISBELLAIRS,

Defendant and Appellant. C093250
(Super. Ct. No. 19CF03920)

OPINION ON REHEARING

Defendant Joshua Louis Dennisbellairs pleaded guilty to violating a domestic relations court order with a prior conviction

. After defendant violated his probation a second time , the trial court revoked his probation and sentenced him to the upper term of three years. On appeal, d efendant argues the trial court abused its discret ion by imposing
the upper term. We affirm ed the judgment . De fendant filed a petition for rehearing arguing he was entitled to have the matter remanded for the trial court to reconsider his
sentence under Senate Bill No

. 567 (2021

- 2022 Reg. Sess.) because he asserts his failure2

to be successful on probation is no longer a proper basis to impose an upper term

se ntence

. We granted that petition, and after briefing , affirm the judgment.

FACT UAL AND PROCE DURAL BACKGROUND
The victim , who lived in a Federal Emergency Management Agency trailer at a campground near Lake Oroville , called California ’s Department of Parks and Recreation (Parks Department) . She report ed that three days prior she had been assaulted at her trailer by defendant, her ex

- boyfriend , against whom she had a restraining order. According to t he victim , defendant showed up at her trailer and said he needed to
talk. The victim let defendant inside and he began to beat her. She curled up in to a fetal position while defendant struck her head multiple times and kicked her.
Defendant remained in the trailer after the assault. He threatened the victim wi th more violence if she did not stop flinching when ever he came near her. The victim asked
defendant to leave, but he said he did not have any gas and did not leave . The victim was unable to report the abuse until she fled from her trailer three days later when the defendant left to ask the neighbors for some marijuana. S he then called the Parks Department

. When she spoke to the Parks Department , she reported pain in her jaw, nose, head,
wrists , and ankles. The responding Parks Department ranger noticed bruising on her
wrists and forearms. The victim declined any medical attention. Rangers entered the victim’s trailer and located defendant in the victim’s bedroom. Upon his detention, d efendant invoked his right to remain silent. While being transported to jail, defendant asked who had reported he was in the trailer and stated that he had come
to the trailer a week prior at the victim’s invitation. Defendant said after he went to the neighbor’s trailer to ask for marijuana, he returned to find a note from the victim stat ing she went to the Social Security Office and a real estate office.3

Defendant pleaded guilty to disobeying a domestic relations court order with a prior

. (Pen. Code, § 273.6, subd. ( d)

. ) 1 He stipulated the court could derive the factual basis for his plea from the probation report. Th at probation report established defendant was on probation for the prior conviction when he committed the instant crime. The
court dismissed the misdemeanor ba ttery (§ 243, subd. (e)(1)) charge with a Harvey 2
waiver. T he trial court granted probation for 36 months as recommended in the probation report. At the time of the offen s e, defendant was on probation for misdemeanor violation of disobeying a domestic relations court order (§ 273.6, subd. (a)), and failure to appear (§ 1320, subd. (a))

. The probatio n report recommended probation but concluded if the

court sentenced defendant to prison, the trial court should impose the upper term of three
years . The report stated there were many circumstances in aggravation ; his prior convictions were numerous, his prior performance on probation was unsatisfactory, and he was on informal probation when he committed the offense. The report concluded no circumstances in mitigation appeared to apply. Defendant’s criminal record summary
shows six prior misdemeanor convictions , one felony conviction , and nine probation
violations. Shortly after the trial court granted probation, defendant tested positive for methamphetamine. In response to the petition for violati on of his probation, d efendant
admitted he tested positive for and ingested methamphetamine. Ultimately, t he trial court
reinstated defendant’s probation and imposed 90 days in custody for that violation.

1 Undesignated statutory references are to the Penal Code.

2 People v. Harvey (1979) 25 Cal.3d 754.4

Following the first probation violation, defendant moved from his home and did not report to his probation officer. He was arrested more than a year later. Defendant admitted he failed to report to his p robation o fficer. Because defendant expressed concerns about being able to successfully complete pro bation, the prosecutor suggested the trial court obtain a supplemental probation report. The supplemental probation report detailed defendant’s failure to comply with the terms of his probation when using methamphetamine. It also detailed defendant’s

stat ement that he no longer wanted to deal with his probation officer. Defendant asserted
he ha d posttraumatic stress disorder (PTSD) as a result of the Camp Fire in Butte County

. H e also stated he would not enter into a Johnson 3 waiver because “I am not go ing to give up my time. That is crazy. I will lose it if I have to go to prison with no credits. It will make me commit another crime if I have to do that.” In the evaluation section, the report characterized this statement as an admission defendant would most likely commit another
crime shou ld the trial c ourt sentence him to prison. The supplemental probation report identified defendant’s numerous prior violations of probation and many drug and domestic violence convictions. The report
noted defendant failed to enroll in court

- ordered treatm ent courses for batterers and for substance abuse. Further, defendant had not paid any fines and sustained two documented violations of probation within a two

- month period. Th e report concluded
this was unsatisfactory performance on probation. The report noted that defendant denied he assaulted the victim and denied he had anger problems. The supplemental report noted that defendant had absconded for a year
and would not be before the court but for the fact that he was arrested. The report also

3 People v. Johnson (2002) 28 Cal.4th 1050 , 1053

- 1054

.5

s t ated t hat defendant minimize d his role in every adverse event and accept ed zero responsibility for any of his actions

. The supplemental report recommend ed denying probation and imposing the upper term of three years. At the hearing, the trial court noted it had reviewed, read , and considered the supplemental report and it was the trial court’s intent to follow the recommendation.
D efendant argued for the middle term of two years. Defendant noted he had been on probation previously and successfully completed it. Defendant argued the only felony
conviction he had was now considered a misdemeanor and he ha d never been to prison.
Defendant asserted he has mental health issues due to the fires in Paradise. Finally, defendant argued the victim’s injuries were not s evere. Defendant did not contend the supplemental probation report had any material errors, nor did defendant object that the supplemental report failed to address aggravating or mitigating factors. Defendant personally addressed the court and denied he was argumentative with his probation officer. Instead, he blamed their communication problems on his PTSD. The People argued for the upper term.
The trial c ourt imposed the upper term. The trial c ou rt noted defendant was on probation for disobeying a domestic relations order when he committed the crime and
that he denied the original assault and his anger issues. The trial court further noted that
defendant a bsconded from probation supervision for a lmost a year and ha d n ot take n responsibility for his role in the incident. Finally, the trial court noted probation ha d exhausted all of the options to assist defendant.
DISCUSSION
Defendant argues the trial court abused its discretion by imposing the up per

- term

sentence because it failed to exercise its independent discretion as demonstrated by the

court ’s failure to sign the probation report or to discuss aggravating and mitigating
factors on the record. Defendant argues the facts the trial court set forth on the record did6

not justify the sentence imposed. Defendant finally con t ends the supplemental report
contained material errors

. I Upper Term Sentence Pursuant to section 1170, subdivision (b), as it existed at the time of sentencing, “[w]hen 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.” Selection of the upper t erm is justified only when aggravating circumstances outweigh mitigating circumstances. ( People v. Lamb (1988) 206 Cal.App.3d 397, 401.)
We review a trial court ’ s election of the lower, middle, or upper term for an abuse of
discretion. ( People v. Sandov al (2007) 41 Cal.4th 825, 847.) “[A] trial court will abuse
its discretion .

. . if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.” ( Ibid. ) The trial court may
base its dec ision on any aggravating circumstance it deems significant that is

“ ‘reasonably related to the decision being made.’ ” ( Id . at p. 848; see also Cal. Rules of Court, rule 4.408(a).) Moreover, “ ‘[t]he 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 pa rticular sentence will not be set aside on review.’ ” ( People v. Superior Court ( Alvarez ) (1997) 14 Cal.4th 968, 977

- 978.) Only a single aggravating factor is required to impose the upper term. ( People v. Osband (1996) 13 Cal.4th 622, 728

- 729. )
Here , th e court’s initial observation on the record was the fact defendant was on probation at the time he committed the first offense. The defendant ’ s prior performance on probation was thus unsatisfactory. ( Cal. Rules of Court, rule 4.421 (b)(4)

. ) T his is a proper and sufficient basis for imposing the upper term.7

W e conclude the trial court’s consideration of the other matters

— the defendant’s lack of remorse, absconding from probation, minimizing his own culpability, claims of
PTSD , and that probation ha d exh austed all of the options for assistance to the defendant
it could for defendant

— were legitimate reasons not to reinstate probation

. Defendant has
not demonstrated otherwise. In his petition for rehearing, defendant argues the trial court can no longer us e the failure to perform on probation as a basis for the imposition of upper term under the changes to the law brought about by Senate Bill No. 567 (202 1

- 202 2 Reg. Sess s. ). We
dis a gree. Senate Bill No. 567 amen d ed section 1170, subdivision (b) to state , i n relevant part, as follows: “(b)(1) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwi se provided in paragraph (2). “(2) The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts under lying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

. . . “(3) Notwithstanding paragraphs (1) and (2), the court may consider the
defen dant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury. This paragraph does not apply to enhancements imposed on prior convictions.” (Stats. 2021, ch. 731, § 1.)
D efendant argues and the Attorney General concedes, this amendment to the law is ameliorative and should be applied retroactively under In re Estrada (1965) 63 Cal.2d 740, 744

- 745 , to this case because it was not final when the law went into effect. The
new law is ameliorative because it make s the middle term the presumptive sentence and8

requires a defendant to stipulate to any circumstances in aggravation that will support an upper term sentence or those facts must be found true by a jury or the trial court beyond a
reasonable doubt after a trial. Because it is potentially ameliorative to defendant it should be retroactively applied. ( People v. Superior Court ( Lara ) (2018) 4 Cal.5th 299, 307

- 308.)
Even though the new law applies here, it does not require resentencing . Nothing in the amended law prohibits the trial court from considering the circumstances in aggravation listed in California Rules of Court, rule 4.421 where those facts are stipulated
to b y the defendant or found true by the court or a jury. In this case, defendant admitted in the probation report he committed the instant crime while he was on probation for the prior crime. He further stipulated this report could be used as the factual ba sis for his plea. The trial court properly considered this fact to justify the upper term sentence. In addition, the trial court was entitled to consider events occurring between the original grant of probation and the reinstatement of probation when it r esentenced defendant upon revocation of his reinstated probation. ( People v. Harris (1990)
226 Cal.App.3d 141, 147

. ) Here, defendant admitted the facts that support the two violations of his probation in open court and the court reinstated his probation after the first violation. Under these circumstances, the imposition of the upper term was not an
abuse of discretion.
II Supplemental Probation Report
The Attorney General argue s defendant forfeited arguments that the trial court
relied on material error s in the supplemental probation report and failed to review the probation report by failing to raise these objec t ions before the trial court

. Defendant argues his counsel’s failure constituted ineffective assistance of counsel.9

We agree with the Attorney General d efendant forfeite d t h e s e arguments because they were not raised before the trial court. ( People v. Scott (1994) 9 Cal. 4th 331, 351.)
We further conclude defendant failed to demonstrate his counsel was inef fective

. To prevail on a claim of ineffective assistance of counsel, a defendant must prove that: (1) counsel’s performance fell below the prevailing professional norms; and (2) that it is reasonably probable a more favorable outcome would have resulted but for counsel’s failings. ( S t rickland v. Washington (1984) 466 U.S. 668, 687; People v. Williams (1997)
16 Cal.4th 153, 257.) “An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.” ( People v. Kelly (1992)
1 Cal.4th 495, 540.) “[I]f the record sheds no light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no sati sfactory explanation for counsel’s performance.” ( People v. Castillo (1997) 16 Cal.4th 1009, 1015.) We presume “ ‘counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a m atter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel.’ ” ( People v. Carter (2005) 36 Cal.4th 1114, 1189.) Here, at the sentencing hearing, defense counsel articulated the key arg uments counsel beli e ved supported the imposition of the middle term : defendant previously and successfully completed probation ; his only felony conviction is now considered a misdemeanor; he had mental health issues ; and the victim’s injuries were not sev ere

. His
failure to object to conclusions set forth i n the supplemental probation report represent a defense counsel’s reasoned determination that those issues either were not misrepresented

or not material

. For example, defendant asserts the probation r eport’s conclusion that
defendant said he would commit another crime if sent to prison , misrepresented what the defendant said, quoting defendant’s comments regarding his feelings about a potential
waiver. The supplemental probation report included both defendant’s statement and the10

disputed conclusion

. Defense counsel’s decision not to argue this point and highlight his
client ’s potential future intent to disregard the law at sentencing , did not fall below the
standard of reasonableness.
As to the second material error , defendant argues the supplemental probation report improperly raised the issue of d efendant’s denial he assaulted the victim and of his anger issues , given that the assault charge was dismis sed

. D efendant’s dismissal was
entered with a Harvey waiver

. A Harvey waiver permits the sentencing court to consider the facts underlying dismissed counts and enhancements when determining the appropriate disposition for the offense or offenses of which the defendant stands
convicted. ( People v. Moser (1996) 50 Cal.App.4th 130, 132

- 133.) Defendant’s counsel’s decision not to focus on this issue did not fall below the standard of care

. Third, defendant argues the probation report’s conclusion that defendant routinely minimized his role in every adverse event and accept ed zero responsibility for his
behavior was false because he pled guilty. B oth his plea , which was only to one of the two charges, and the probation office r ’s conclusion s based on tho se facts were before the

court

. Defense counsel had nothing to gain for defendant by arguing that the probation officer’s conclusion was erroneous. Defense counsel’s decision not to object because the trial court did not state it
review ed the prior probation report was similarly not deficient

. While t he probation report recommended probation, it examined the appropriate aggravating factors that applied to defendant and concluded no mitigating factors applied. Defense counsel reasonably could have c oncluded raising this issue could only hurt, not help his client. His failure to object was not ineffective assistance.11 DISPOSITION The judgment is affirmed.

/s/ RAYE, P. J.

We concur:

/s/ ROBIE, J.

/s/ HOCH, J.