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Filed 7/12/16 P. v. Collins CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ROBERT RONALD COLLINS,

Defendant and Appellant. C079758

(Super. Ct. No s . CM040069, CM041686)

Defendant Joshua Robert Ronald Collins appeals from a resentencing order following defendant’s request to reduce his felony conviction of Health and Safety Code
section 11377, subdivision (a), in case N o. CM040069 to a misdemeanor pursuant to

Penal Code se ction 1170.18 (Proposition 47). The trial court granted defendant’s request

but re imposed the same sentence and the previously

- imposed fines and fees

. On appeal,

he contends that his counsel was ineffective for failing to object to the trial court’s

deci sion not to modify the restitution and parole

- revocation fines.
We order correction of the abstract of judgment and otherwise affirm.2 FACTUAL AND PROCEDURAL BACKGROUND

Case No. CM040069 1
Shortly after midnight on January 8, 2014, an Oroville Police Depar tment officer
responded to call about a suspicious person “roaming around” in front of a building

. By the time the officer arrived, defendant had entered the lobby of the building. The officer
contacted defendant, who was looking at a wall and appeared to be talking to it.

Defendant identified himself and claimed he was talking to a person on the other side of

the wall. Defendant ’s pupils were dilated, he was shifting his weight from side to side,

he was speaking qui ckly

, and he was moving his hands and fingers “in an uncontrollable
manner.” Based on this behavior, the officer suspected defendant was under the

influence of a controlled substance. Th e officer asked defendant if he was on anything,

and he admitted “re cent drug use” and that he had methamphetamine in his possession

. After the officer ’s request

, defendant gave the officer the methamphetamine he had

, which amounted to a net weight of 0 .85 grams.
On February 11, 2014, defendant was charged in case No. CM 040069 with
possession of a controlled substance (Health & Saf. Code, § 1137 7, subd. (a) ( count

one ) ). He ultimately pleaded no contest to count one.

Case No. CM041686
On August 4, 2014, a Butte County deputy responded to a report that defendant,

who was possibly under the influence of a controlled substance , was standing outside of a
trailer and yelling at people. The deputy determined that defendant had outstanding

warrants. Once the deputy arrived, defendant fled. When the deputy chased him and

orde red him to stop , defendant stopped, turned toward the deputy, raised his fists, and yelled, “ ‘ Don’t fucking touch me! ’ ” The deputy told defendant that he was under arrest

1 The facts are taken from the probation report.3

and tried to grab his upper body, and defendant grabbed the deputy’s neck and thre w him
to the ground. Defendant continued to hold the deputy’s neck and throat and said, “ ‘ I’m going to choke him out, I’m sorry, I’m choking him out. ’ ”
While still in a chokehold, the deputy was able to reach his lapel microphone and

request backup ; he then struck defendant twice on his head, causing him to release his

choke hold

. The deputy then struck defendant on his arm with a baton. Defendant placed
his hands behind his back and said, “ ‘ I’m done. ’ ” He was then arrested

. 2 Because

defendant was on searchable probation, his trailer was searched; two glass smoking
devices containing burnt residue with a crystalline substance were discovered in his

trailer.
On August 6, 2014, defendant was charged in case No. CM041686 with assault
upon a peace offi cer (Pen. Code, § 245, subd. (c) 3 ( count one ) ), misdemeanor possession
of a smoking device (Health & Saf. Code, § 11364.1, subd. (a)(1) ( count two ) ), and
assault with means of force likely to cause great bodily injury (§ 2 45, subd. (a)(4) ( count

three ) ). 4 Defendant pleaded no contest to count three, and counts one and two were
dismissed on the prosecutor’s motion

. Sentencing
On September 10, 2014, the trial court denied defendant’s request for probation

and sentenced him to a total term of four years eight months in state prison. The term
consisted of the upper term of four years for count three in case No. CM041686 and eight

2 The deputy suffered a three

- inch abrasion to his left forearm, a small abrasion to his left knee, a large abrasion and small cut to his right knee, scrapes on his left calf, and pain in his right knee, right hip, and neck.

3 Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.

4 The felony complaint was amended to add count t h ree.4

months, or one

- third the midterm, for count one in case No. CM040069. In each case,

t he court imposed a $300 r e st i tution f ine under section 12 0 2.4 and imposed and suspended a $ 300 pa r ole

- revocation f

ine pursuant to 12 0 2.45. 5

DISCUSSION

Ineffective Assistance of Counsel
A. Additional Background and the Parties’ Contentions
On December 8, 2014, def endant requested modification of his sentence in case

No. CM04 0 069 for his Health and Safety Code section 11377, subdivision (a)

, conviction
pursuant to Proposition 47. The trial court granted his request and reduced his felony

conviction to a misdemeanor conviction.
On April 27, 2015, at resentencing on the reduced conviction, the court imposed
an eight month sentence in case No. CM04 0 069 , to run consecutive to the four years
imposed in case No. CM041686. The trial court reimposed the same fines and fee s, stating that i t had “r e vi e wed the f ees and f ines, f inds them all to be wi t hin the Court’s

d i scretion, and th e y will n ot [ be ] modi f ied.” Defense counsel did not object. Defendant’s sole claim on appeal is that defense counsel was ineffective in failing to object to the trial court’s decision to reimpose the $300 r e st i tution f ine (§ 12 0 2.4) and
$ 300 pa r ole

- revocation f

ine (§ 12 0 2.45). Defendant notes that because defense counsel
failed to object below, his challenge to these fines was forfeited on appeal. He argues that his counsel could have made a compelling argument that defendant had no ability to pay and that the minimum fine of $150 for a misdem eanor should have been imposed

5 The abstract of judgment inaccurately lists that a probation

- revocation fine (§ 1202.44) was imposed in each case. It is clear from the record, and the parties agree, that a parole

revocation fine pursuant to section 1202.45 was imposed in each case, rather than a probation

- revocation fine. Accordingly, we direct the trial court to correct the abstract of judgment to reflect that a parole

- revocation fine pursuant to section 1202.45 was imposed instead of a probation

- revocation fine pursuant to section 1202.4 4.5

after his felony conviction was reduced to a misdemeanor. We conclude that defendant

has not shown ineffective assistance of counsel.

B. Analysis
To establish ineffective assistance of counsel, a defendant must show (1) co unsel’s
performance was below an objective standard of reasonableness under prevailing
professional norms, and (2) the deficient performance prejudiced defendant. ( Strickland
v. Washington (1984) 466 U.S. 668, 688, 691

- 692 [80 L.Ed.2d 674 , 693

- 694, 696 ]
( Strickland ); People v. Ledesma (1987) 43 Cal.3d 171, 216

- 217 ( Ledesma ).)

“ ‘Surmounting Strickland ’s high bar is never an easy task.’ ” ( Harrington v. Richter
(2011) 562 U.S. 86, __

_ [178 L.Ed.2d 624, 642] ( Richter ), quoting Padilla v. Kentucky
(2010) 5 59 U.S. 356, 371 [176 L.Ed.2d 284, 297].)

1. Deficient Performance The reason why Strickland ’s bar is high is because “[a]n ineffective

- assistance
claim can function as a way to escape rules of waiver and forfeiture and raise issues not
presented at trial, and so the Strickland standard must be applied with scrupulous care, lest ‘intrusive post

- t rial inquiry’ threaten the integrity of the very adversary process the
right to counsel is meant to serve. [Citation.]

. . . It is ‘all too tempting’ to ‘second

guess counsel’s assistance after conviction or adverse sentence.’ [Citations.] The
questio n is whether an attorney’s representation amounted to incompetence under ‘prevailing professional norms,’ not whether it deviated from best practices or most

common custom.” ( Richter

, supra , 178 L.Ed.2d at pp. 642

- 643.) “ If the record does not

disclose w hy counsel acted or failed to act in the manner challenged, then, unless counsel
was asked for and failed to provide an explanation or there could be no satisfactory
explanation ,” the claim must be rejected on appeal. ( People v. Alvarado (2001) 87
Cal.App .4th 178, 194.)6

In this case, it is clear from the record that the trial court understood it had the
discretion to modify the fines and fees and elected not to modify them. When a sent e nce
incl u des a period of parole, section 1202.45, subdivisions (a) an d (c)

, requires the s e ntencing

c o urt to impose and suspend a parole

- r evocati o n f ine in the s a m e a mount as the mandatory

restitution fine required by sections 1202.4. 6 T he $ 3 0 0 f ines that the trial court imposed

were well within the discretion of th e court pursuant to section 1202 .4, subdivision (b), which
provides that the fine for a misdemeanor conviction after January 1, 2014

, shall be not

less than $ 150 a nd not more than $ 1,00 0

. Based on the statutory basis for the fines and the trial court’s statement that it

reviewed fines and was exercising its discretion not to modify the m , defense counsel

could have reasonably perceive d that a request to reduce the fines from $300 to $150

would have be en futile. The $300 fine was well within the authorized $ 150 to $1 ,000
statutory range, and defense counsel may have known defendant had the ability to pay
(even if defendant did not also have the ability to pay for the presentence report and attorney’s fees) and reasonably decided not to challenge the relatively low restitution

fine. “ ‘Trial counsel is not required to make futile objections, advance meritless
arguments or undertake useless procedural challenges merely to create a record impregnable to assault for claimed inadequacy of counsel.’ ” ( People v. Stratton (1988)
205 Cal.App.3d 87, 97, quoting People v. Jones (1979) 96 Cal.App.3d 820, 827; see
People v. Mendoza (2000) 78 Cal.App.4th 918, 924 [“It is well settled that counsel is not
ineffective in failing to make an objection when the objection would have likely been overruled by the trial court.”].) Accordingly, we cannot conclude that defense counsel’s

6 Section 1202.45, subdivision (a), provides, “ In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Sectio n 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to sub division (b) of Section 1202.4.”7

“ representation amounted to incompetence under ‘prevailing professional norms. ’ ”
( Richter

, supra , 178 L.Ed.2d at p. 642.)

2. Prejudice

Even if defendant could show deficient performance to satisfy the first Strickland

prong, we conclude that defendant was not prejudiced. To establish prejudice, “It is not enough ‘to show that the errors had some conceivable effect on the outcome of the
proceedin g.’ ” ( Richter

, supra , 178 L.Ed.2d at p. 642.) To d e m onstrate prejud i ce, appellant “ must car r y h is burden of provi n g prejudice as a ‘d e m o n s trable reali t y , ’ not

s i m pl y speculat i on as to the ef f ect of the errors or o m i ssi o ns of cou nsel.” ( P e op l e v.

W illia m s (19 8 8) 44 Cal.3d 883, 937 ( Williams ) .) To show prejudice, defendant must
show a reasonable probability that he would have received a more favorable result had counsel’s performance not been deficient. ( Strickland

, supra , 466 U.S. at pp. 693

- 694;

Ledesma

, supra , 43 Cal.3d 171, at pp. 217

- 218.)
Here, defendant contends that because “the court found [he] had no ability to p a y
for the presentence investigation report or his attorney’s fees” at the original sentencing
hearing and imposed the minimum f ines for his felony offense, an objection likely would
have been successful. This argument is insufficient to meet the burden of showing
prejudice was a demonstrable reality rather than speculation. (See W illia m s , supra , 44

Cal.3d at p. 937.) The trial court exercise d its discretion during resentencing and stated

that it had “reviewed the fees and fines” and that it found “them all to be within the

Court’s discretion and will not be modified.” We cannot conclude on this record that

there was a reasonabl e probability of a more favorable result. ( Strickland

, supra , 466
U.S. at pp. 693

- 694; Ledesma, supra , 43 Cal.3d at pp. 217

- 218.)

Defendant has not met his burden of showing either deficient performance or
prejudice

. Accordingly , we reject his ineffecti ve assistance claim.8 DISPOSITION

The trial court is directed to c or r ect the abstr a ct of jud g m e nt to re f lect that a parole

- r ev ocation f

ine pursu a nt t o sect i on 1 202.45 was i m po s ed rather than a probatio n

revocat i on f

ine pursuant to section 12 0 2.44. The trial court is further ordered to forward
a certified copy of the corrected abstract to the California Department of Corrections and

Rehabilitation. The judgment is otherwise affirmed.

MURRAY , Acting P. J.

We concur:

DUARTE , J.

RENNER , J.