1 Filed 8/29/13 P. v. Herrera CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. ALFREDO ARIAS HERRERA, Defendant and Appellant. A134497
(Mendocino County Super. Ct. Nos. SCUK-CRCR-11-0018064 & SCUK-CRCR-11-0018468)

In re ALFREDO ARIAS HERRERA, on Habeas Corpus. A136618

Defendant Alfredo Arias Herrera appeals fro m a judgment entered after his plea of guilty to the felony offenses of possession of a controlled substance for sale (Health & Saf. Code, § 11378) and attempted witness intimidation (Pen. C ode, § 136.1, subd. (a)(2)). He was sentenced to the upper term of three years for the attempted witness intimidation conviction, to be served concurre ntly to the middle term of two years for the drug conviction. On appeal Herrera seek s a new sentencing hearing on the ground the
trial court made misstatements about the und erlying prosecution giving rise to the attempted witness intimidation offense. He also contends on direct appeal and in a petition for a writ of habeas corpus 1 that his trial counsel was ineffective for failing to

1 We consolidated the petition with this appeal.2 object to the trial court’s misstatements. We conclude Herrera’s contentions do not require reversal and a remand for resentencing . Accordingly, we affirm the judgment and deny the petition for writ of habeas corpus, a nd the related request for judicial notice of the record on appeal.
FACTS A. Background On October 21, 2011, the dist rict attorney filed two in formations. In case No. 11- 0018064, Herrera was alleged to have committed the felony offenses of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and possession of methamphetamine for sale (Health & Saf. C ode, § 11378), arising from an incident on June 16, 2011. In case No. 11-0018468, Herrera was alle ged to have committed the felony offense of attempted witness intimidation (Pen. Code , § 136.1, subd. (a)(2)), with special allegations that the offense was committed on August 14, 2011, with “force and/or . . . the threat of force or violence upon the witness, or any th ird person,” and that
at the time of the offense Herre ra was released from custody on the prior drug offenses. 1. Change of Plea Proceeding At a change of plea proceeding, Herrera agreed to plead gu ilty to the felony offenses of possession of a c ontrolled substance for sale in case No. 11-0018064 and attempted witness intimidation in case No. 11- 0018468. In exchange for the pleas, the prosecutor agreed to dismis s the remaining charge in case No. 11-0018064 and the special allegations in case No. 11-0018468. As to the factual basis for the drug offense,
counsel stated that on June 16, 2011, Herrera had been pulle d over as he was driving a
car. A search of the car rev ealed about two ounces of methamphetamine in two separate packages. As to the factual basis for the attempted witness intimidation offense, counsel stated that on August 14, 2 011, Herrera went to see a witness in a domestic dispute incident, and during a discussion the witne ss felt intimidated because Herrera grabbed him by the shoulders, shook him, and told him he better change his st ory or he would get beat up. Herrera understood he could be sent enced to state prison for a maximum term of three years and eight months for both convictions.3 2. Sentencing Proceeding Before sentencing, Herrera’s trial counse l filed a statement in mitigation for each case, and the probation department officer file d a report for each case. In his statements of mitigation, defense counsel alleged, in pertinent part, th at all of Herrera’s criminal conduct was a consequence of his methamphetami ne addiction; he had never participated in any drug treatment program, but since hi s current convictions he had on his own, applied for and been accepted to a drug treatment program; he requested the opportunity to participate in treatment; and he was greatly remorseful for his criminal behavior. In the probation department reports, th e probation officer included the following information. Twenty-s even-year-old Herrera was facing se ntence on his second and third felony convictions. Herrera had concededly used methamphetamine on a daily basis for the past 10 years, and considered himself an alcoholic, having consumed alcohol on a daily basis for the past five years. He never sought any treatment for his addictions
because he was not motivated to do so. However, since his current convictions, he was ready to take responsibility for his behavior because he now ha d children. At the time of the commission of the offenses, Herrera wa s on two grants of summary probation for
misdemeanor convictions for driving under the influence (2008) and driving with a suspended license (2010), he had served a prior 13-month prison te rm for a felony drug offense in the State of Washington (2004 ), and had a prior misdemeanor conviction for driving without a valid driv er’s license (2009). The probation officer described the fact ual circumstances of the two cases based on police reports and the statement of the intim idated witness. On June 16, 2011, two police officers stopped Herrera while he was driving his car. A police dog alerted the officers to the presence of a controlled substan ce in the car. A search of the car revealed an open box of sandwich bags, a digital scal e, and two sandwich bags containing a total of about 55 grams of methamphetamine. A s earch of Herrera’s person revealed a glass pipe commonly used for smoking methamphetami ne, and $2,253.30. After Herrera was released on bail on the drug offenses, he was a rrested two months later after he threatened a neighbor who had witnessed a domestic vi olence dispute between Herrera and his4 girlfriend. On August 10, 2011, Herrera’s neighbor repor ted the domestic violence dispute to the police. The po lice arrested Herrera based on th e neighbor’s statements and other physical evidence. Four days later, on August 14, 2011, Herrera was released on
bail on the domestic violence offense and confr onted the neighbor at his neighbor’s home at 9 p.m. in the evening. Herrera said the neighbor needed to change the statement he had given to the police and complete a different written statement. The neighbor refused because he did not want problems with law enforcement. Herrera said that if the neighbor did not do what was asked, Herre ra would go to the police and make a report that the neighbor was abusing his children so they would be taken away by “CPS.” The neighbor continually stated he did not want to lie to the police, but Herrera said the neighbor “ ‘would be sorry’ ” if he did not. Before he left, Herrera pointed his hand and made a gesture with it, simulating the firing of a handgun at the neighbor. The neighbor was extremely concerned and believed Herrera would carry out his threats because of the
domestic violence incident he had witnessed a nd the rumors of Herrera’s involvement in the use and sale of illegal drugs. The probation officer reco gnized the egregiousness of the attempted witness intimidation offense, but noted that Herrera cl aimed he made a serious error in judgment, which was exacerbated by his drug use. Herrera claimed that at the time of the August 14 incident, he was under the influence of meth amphetamine, he never intended to act on his threats, and his motivation wa s simply to help his girlfri end regain custody of her daughter who had been taken by child prot ective services. Th e probation officer conceded that, “[t]ypically, in a case involving such a significant amount of methamphetamine, as well as several other a ggravating circumstances (prior felony drug offense and victim intimidation),” he woul d not hesitate to recommend a state prison commitment. However, in this case, the probation officer was re commending probation, which was a “bit unusual,” and “with some re servation,” because of Herrera’s “frankness and accountability regarding his be havior,” and his a pparent sincere desire to change his behavior, having already take n the initiative of applying for and being accepted in a residential drug treatment program. The pr obation officer also opined that Herrera’s5 “remorse did not feel forced or artificial,” and he seemed “to really want to be a good
father to his children.” Before imposing sentence on January 20 , 2012, the trial c ourt acknowledged having read and considered (1) the probati on reports on each case, and (2) the defense counsel’s sentencing statemen t in mitigation submitted on e ach case. The court then informed the parties of its tentative sent ence “not to follow the probation officer’s
recommendation” as the court believed that the combination of the cases required a prison term. As to the drug conviction, the court commented that “this is an enormous amount of methamphetamine. And Mr. Herre ra has a prior conviction from 2004, a felony conviction from Washington State wh ere he was sent to prison for drug distribution. He was on probation . . . in another matter when he committed this
offense. . . . There is no indication in the record that Mr. Herrera committed the [current drug offense] to support hi s own habit” based on the qu antity of drugs. As to the attempted witness intimidation conviction, the court again co mmented that at the time of
the commission of this offense of a “violent nature,” Herrera was “already on [a] grant of summary probation when he committed this o ffense,” and “he had a felony drug offense pending. And the combination of the two ev ents happening so [clo se] in time . . . does not merit a grant of probation.” In response to the court’s comments, He rrera’s counsel stated: “Your Honor, to put it simply my client is an addict, has been an addict for most of his adult life. The
behavior in the intimidation of a witness charge all rela tes to the underlying matter, which is possession of methamphetamine fo r sale. He’s a typical methamphetamine
abuser who sells in order to maintain his own ha bit. That is his pattern. And as the court
indicated it is even reflected back to the Washington dispos ition.” Defense counsel asked the court to give Herrera one final opportunity to turn his life around by allowing him to participate in a drug treatment program. Th e trial prosecutor argued the commission of
the two offenses did not demonstrate cond uct by someone who was “just simply an addict,” but rather a criminal who had had multiple chances.6 The court acknowledged that Herrera might want to and had to participate in a drug program because of his desperate positi on, but the court coul d not “overlook the cost of public safety for this amount of methamphetamine, especially [as Herrera had] been in prison.” “[A]nd then when you are out of cust ody on this case, you go and intimidate a neighbor using threatening gest ures, you are dissuading them from being a witness in the underlying narcotic s case. This is not a probation case. . . . [¶] . . . [¶] And, [defense counsel], I appreciate your comments. I heard your comments. I am considering your comments. I think that Mr. Herrera could . . . benefit from a residential treatment program. But the cost to the public of his conduct is f[ar] greater than a residential program can offset at this time. I think he’s a threat to society based on his violent conduct and dissuading a witness or attempting to dissuade a witness in this action. So I am going to deny probation.” The court then as ked Herrera if he wanted to make a statement. Herrera replied that hi s criminal conduct was a consequence of his drug use, and he wanted “one chance” at tr eatment because he now had children and did not want them to see him in prison. When actually imposing sentence for the attempted witness intimidation conviction (the designated principal offense), the court denied probation for the following
reasons: “The defendant inflicted extreme emo tional trauma on the victim in this matter; the defendant was an active par ticipant in the underlying offe nse; he has a prior felony drug-related conviction from the State of Washin gton for which he was sent to prison; he was on a grant of summary probation when th is matter occurred; he actually had another pending felony that had not been yet resolved when this incident occurred; the underlying conduct of attempting to dissu ade a witness who was a neigh bor caused the neighbor to be severely traumatized; I don’t believe the defendant can successfully complete probation due to a severe [poly] substance paradigm; while he is remorseful and has recognized that he suffers fro m [a] serious drug addiction, I find the defendant to be at this time a threat to society. ” When imposing a prison term of three years, the court stated it was “selecting the aggravated term in part because [Herrera] ha[d] a pending . . . drug prosecution when he committ ed this offense. The witn ess intimidation was directed7 at a witness in that matter and caused the witn ess to . . . have severe emotional trauma. I
think that the conduct in this case was especially egregious in actualizing the intimidation behavior. I think the case merits an aggravat ed term.” When sentencing Herrera for the drug conviction, designated as the subordinate offe nse, the court denied probation for the reasons previously stated, and imposed a co ncurrent two-year (middle) term without
further comment.
DISCUSSION Herrera correctly contends that on two occasions during the sentencing proceeding the trial court mistakenly stated that th e underlying prosecution giving rise to the attempted witness intimidation offense was the consolidated drug prosecution. He then contends the court might have imposed proba tion or the lower term of two years (Pen. Code, § 18, subd. (b)) if it had remembered th at the attempted witn ess intimidation arose
from an unrelated domestic violence incident . For the reasons we now discuss, we disagree and conclude reversal and a ne w sentencing hearing is not required. The parties present arguments regarding whether Herrera’s appellate contention is properly before this court. However, we need not address these arguments. Even assuming Herrera’s failure to object in the tr ial court did not forfeit his claim, he has not demonstrated prejudicial error under any standard of harmless error review ( Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 8 18, 836), and he has not shown that the sentence was imposed in violation of his constitutional due process rights. In determining whether th e trial court’s misstatements were prejudicial, we
consider Herrera’s failure to bring the error to the court’s attention at any time during the sentencing proceeding. (See Wainwright v. Witt (1985) 469 U.S. 412, 431, fn. 11 [“failure to speak in a situation later claimed to be so ri fe with ambiguity as to constitute
constitutional error is a circumstance we feel justified in consid ering when assessing [defendant’s] claims”].) After the court’ s first misstatement, Herrera was given an opportunity to make a statem ent at which time he could have mentioned the court’s
misstatement. Had Herrera or his counsel objected on th e ground now asserted on8 appeal, the court could have easily clarified its sentencing choices. Rather, the record indicates neither Herrera, defense counsel, nor the trial prosecutor, were aware of the court’s misstatements, and c onsequently no one objected to them. Such omission strongly “suggests that ‘ “the potential for [prejudice] argued now was not apparent to one on the spot” ’ ” ( People v. Young (2005) 34 Cal.4th 1149, 1203), thereby supporting a finding that the misstatements were neithermaterial nor determinative of the court’s sentencing choices. In all events, we conclude any potentia l for prejudice “seems minimal even in hindsight.” ( People v. Keenan (1988) 46 Cal.3d 478, 535.) Herrera contends the court’s confusion about the facts of the attempted w itness intimidation offens e caused it to view
the motivation for the offense as aggravating rather than m itigating, and resulted in the court overlooking three notable mitigating ci rcumstances: (1) the offense was not likely
to recur because he was motiv ated by the unusual and distre ssing circumstance of the loss of custody of his girlfriend’s ch ild and his effort to regain custody, (2) the impact of his drug addiction on the domestic violence dispute (which led to no charges being filed against him) and his response in threatening the witness, and (3) his remorse. However, the trial court was not required to “weigh aggravating and mitigating circumstances” ( People v. Sandoval (2007) 41 Cal.4th 825, 847), but ra ther could rely on one single valid aggravating factor to both deny probation and impose an upper term ( People v. Scott (1994) 9 Cal.4th 331, 350, fn . 12), and disregard all mitig ating factors without comment ( People v. Lamb (1988) 206 Cal.App.3d 397, 401). Despite the misstatements, the court’s sentencing choices in this case did no t exceed “the bounds of reasons, all of the circumstances being considered.” ( People v. Giminez (1975) 14 Cal.3d 68, 72.) We are not persuaded by He rrera’s contentions that the court’s sentencing choices were or must have been “inevitably influe nced” by its mistaken belief regarding the underlying criminal prosecution gi ving rise to the attempted wi tness intimidation offense. The court’s mistaken belief regarding the a ttempted witness intimidation offense was not the principal reason for its sentencing choices. Instead, the court enunciated many factors supporting its sentencing choices - including Herrera’s actual criminal behavior giving9 rise to the charged offense of attempted w itness intimidation, as well as his criminal background and uncontrolled drug addiction and alcoholism that made him a threat to society. Because the court’s denial of pr obation and imposition of an aggravated term were supported by appropriate aggravating factors unrelated to the circumstances of the current offenses, we can be reasonably cer tain its misstatements about the attempted
victim intimidation offense were not determinative . (Cf. People v. Cluff (2001) 87 Cal.App.4th 991, 1002-1005 [resentencing re quired because evidence did not support “critical finding” made by trial court in denying defendant’s Romero motion to strike prior conviction].) On this record, it is not reasonably probable the court would have chosen to impose probation or a lesser pris on term had it known that some of its comments were not suppor ted by the record. ( People v. Price (1991) 1 Cal.4th 324, 492.) If we remanded the matter, the court woul d merely refrain from repeating its misstatements, and properly impo se the same sentences. (See People v. Osband (1996) 13 Cal.4th 622, 732; People v. Douglas (1995) 36 Cal.App.4th 1681, 1692.) 2 We also reject Herrera’s contentions th at the court’s misstatements violated his state and federal constitutional due process ri ghts. The cases cited by Herrera hold only that resentencing is required when a trial court demonstrably relies on or gives emphasis to an improper factor that is material or determinative of its sentence choices. (See
United States v. Tucker (1972) 404 U.S. 443; United States v. Borrero-Isaza (9th Cir. 1989) 887 F.2d 1349, 1352; United States v. Safirstein (9th Cir. 1987) 827 F.2d 1380, 1385; United States v. Weston (9th Cir. 1971) 448 F.2d 626, 634; People v. Eckley (2004) 123 Cal.App.4th 1072, 1081; see also People v. Belmontes (1983) 34 Cal. 3d 335, 348,
fn. 8 [sentencing court does not exercise “ ‘infor med discretion’ ” if “sentence is or may have been based on misinformation regard ing a material aspect of a defendant’s record”].) Here, as noted, the court’s senten cing choices were not based exclusively, or

2 Because there has been no showing of pr ejudicial error, Herrera’s related claim raised on direct appeal and in his petition for a writ of habeas corpus that his trial counsel was ineffective for failing to object to the court’s miss tatements must fail. (See Strickland v. Washington (1984) 466 U.S. 668, 697; People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)10 even predominately, on its mistaken belief th at the attempted witne ss intimidation offense
arose from the consolidated dr ug prosecution. Instead, the court relied on a myriad of other aggravating factors, including that Herre ra had a prior felony drug conviction for which he had served a prison term, and at the time he committed the attempted witness intimidation offense he was on summary probati on and had a pending dr ug prosecution. The court reasonably found unpersuasive Herrera’s request to participate in a residential drug treatment program. “Where . . . the substance abuse problem has led to behavior described as aggravating factors in [Californi a Rules of Court, rule 4.421(b)], such as a pattern of criminal conduct dangerous to societ y, violations of parole or probation, and unsatisfactory performance on probation or parole, the a ddiction or alcoholism is properly considered as part of those a ggravating factors because it suggests a high probability of further depredatio ns on the public whenever th e defendant is again out of custody.” ( People v. Reyes (1987) 195 Cal.App.3d 957, 964.) Given the court’s sentencing comments in their entirety, we ar e confident that ther e is no reasonable possibility the court would have imposed a diffe rent sentence but for its mistaken belief that the attempted witness intimidation offense arose from th e consolidated drug prosecution. Accordingly, any error was harmless beyond a reasonable doubt. ( Chapman v. California, supra , 386 U.S. at pp. 23, 24.)11 DISPOSITION The judgment is affirmed. The petition fo r writ of habeas corpus, and the related request for judicial notice of the record on appeal, are denied.

_ ____________ ____________ Jenkins, J.

We concur:

_____________ ____________ Pollak, Acting P. J.

_____________ ____________ Siggins, J.