Filed 9/24/13 P. v. Qualls CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. BRYAN DAVID QUALLS, Defendant and Appellant. F062679 (Super. Ct. No. F08903851)



### OPINION

THE COURT * APPEAL from a judgment of the Supe rior Court of Fresno County. Rosendo Peña, Judge, and Brant K. Bramer, Commissioner. † Roger Nuttall for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorn eys General, for Plaintiff and Respondent.
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* Before Poochigian, Acting P.J., Detjen, J., and Franson, J. † Judge Peña presided over appellant’s change of plea an d placed him on probation. Commissioner Bramer sentenced appellant to pr ison after he was foun d in violation of probation.2. INTRODUCTION On September 18, 2008, appellant, Bryan Roger Qualls, pled guilty to one count of elder abuse (Pen. C ode, § 368, subd. (b)(1)) 1 and admitted an enhancement for committing his offense on someone 70 years of age or older (§ 368, subd. (b)(3)(B)). A psychiatric evaluation was made of appellant prior to se ntencing pursuant to Evidence Code section 460. On February 27, 2009 , the trial court suspended imposition of sentence for five years and placed appella nt on probation upon various terms and conditions, including that he spend 365 days in jail. 2 On March 11, 2011, appellant waived his right to a c ontested heari ng and admitted
that he violated the terms and conditions of his probation. On April 6, 2011, the trial court denied appellant’s request for reinst atement of probation and sentenced him to prison for nine years and granted custody credits of 736 days. The court denied appellant’s request for a certificate of probable cause. Appellant contends the prosecutor misled the trial court concerning the sentencing option of having appellant waive his right to custody credits in exchange for a one-year commitment to county jail. Appellant argues the court should have considered this sentencing option. Appellant al so contends his trial counsel was ineffective for failing to argue this sentencing option. 3 We disagree with these contentions and affirm the judgment.

1 Unless otherwise noted, all statutor y references are to the Penal Code.
2 The court noted its concerns over appella nt’s use of drugs and alcohol as well as appellant’s ability to take the medication he needed to avoid going in to a manic state. The court informed appellant that he was be ing given the opportunity for probation “only once.” Among appellant’s conditions of probati on were that he obey all laws, report to his probation officer upon his release from cu stody, maintain contact with his probation officer, not use alcohol or drugs without a la wful prescription, and submit to substance abuse testing.
3 Appellant initially contends, and responde nt concedes, that he does not need a certificate of probable cause to raise a sentencing issue. We agree with the parties. The3. FACTS AND PR OCEEDINGS Circumstances of Offense On February 21, 2008, appellant took his 88-year-old gr andmother out of a rehabilitation hospital to his moth er’s residence and reportedly left her on the back patio. Appellant returned 15 to 20 minutes later and found his grandmother floating face down in the swimming pool. She was declared dead by drowning. Police found a bruise on the victim. Investigators also learned that appe llant chuckled during a telephone call to the 911 operator.
The victim suffered from advanced dementia , anxiety, and a variety of age-related
ailments. She was not able to propel herself in her wheelchair. Appellant told investigators that he was inside the house w ith the victim. Appellant gave the victim a glass of wine and left her alone inside the house for 15 minutes to go to a nearby fruit stand. Appellant found the victim in the po ol, took her out, and unsuccessfully tried to revive her before calling 911. Appellant told investigators that the victim liked to go outside. Appellant made statements to fa mily members suggesting that he had acted intentionally because the victim was a burden on his mother and it was a mercy killing. Initial Psychological Evaluation Appellant was diagnosed with bipolar diso rder and was seeing a psychiatrist who prescribed medication. Prior to sentenci ng, appellant was evaluated by Dr. Harold
requirement of a certificate of probable cause does not apply where the defendant raises sentencing issues unrelated to integral aspe cts of the terms of the plea agreement. ( People v

. Johnson (2009) 47 Cal.4th 668, 678.) The terms of the plea agreement did not affect appellant’s sentence unless the court denied probation, in which case appellant would receive a prison term of four years. Here, Judge Peña initially granted probation and suspended imposition of sentence. Appellant was not sentenced to a prison te rm until after Commissioner Bramer found him in violation of the conditions of his probatio n and denied reinstatement of probation. Appellant’s prison sentence is an appealable or der of the trial court that does not require a certificate of probable cause.4. Seymour pursuant to Evidence Code section 46 0. Dr. Seymour reported that appellant’s only prior criminal history involved incident s when he was found sleeping overnight in a state park and when he was contacted by an officer and left when his dog tried to run away. Appellant completed his education through a master’s degree. Dr. Seymour’s evaluation of appellant fou nd him to be naïve. Dr. Seymour did not find appellant to be a malingerer. Appe llant showed signs of mania and depression. Dr. Seymour noted that appellant did not ackno wledge having certain experiences such as hallucinations except for one time. D r. Seymour had difficu lty finding positive correlations with any type of mental disord er and noted that th e Personality Assessment Instrument test given to appellant showed no resemblance to individuals suffering from bipolar disorder. Dr. Seymour found that appellant suffere d from alcohol and cannabis abuse, as well as “Bipolar Disorder, Type I, manic type , by history.” Appellant also showed signs of schizotypal personality tra its. Dr. Seymour concluded ap pellant was not a threat to himself or others, was fragile, and in need of treatment. Dr. Seymour concurred with appellant’s psychiatrist who believed appellant required inte nsive therapy twice a week. Dr. Seymour further noted that appellant needed to remain free of drugs and alcohol. Violation of Probation After serving time in custody, appellant met with his probation officer on October 22, 2009. Appellant was given his probation in structions and a mental health referral to contact the Fresno County Mental Health O ffice by November 6, 2009. Appellant met with his probation officer on January 7, 201 0, and stated he was attending monthly therapy. On August 20, 2010, appellant reported to his probation officer that he missed an appointment on August 17, 2010, b ecause his vehicle had been stolen three days earlier in San Francisco. When the probation officer as ked appellant if he had recently used any illicit drugs, appellant replied that he had been offered a cookie containing marijuana.5. Appellant said he had smoked marijuana abou t a month earlier because he was out of medication. Appellant was given a drug testi ng schedule and told to test between August 20, 2010, and October 26, 2010 . Appellant initially refused to test, but 20 minutes later appellant submitted a negative ur ine test. Thereafter, appe llant stopped testing. On September 17, 2010, the probation offi cer could not find appellant at home at
his address of record. The probation officer sent appella nt a written notice to meet on October 1, 2010. Appellant failed to appear for the appointment. The probation officer
obtained a bench warrant in late October 2010 and appellant was arrested on December 2, 2010, for being out of contact with his proba tion officer. Appellant had also failed to drug test during this interval. The proba tion officer recommended that probation not be reinstated and that appellant be committed to prison for two years for elder abuse with a consecutive term of seven years for the elder abuse enhancement. Second Psychological Evaluation Dr. Seymour again evaluated appellant on March 15, 2011. Appellant admitted he had used marijuana. Appellant told Dr. Se ymour that he had entered a manic phase in
which he became obsessed with solving mathematical equa tions and was in what he called a messianic mode of functioning. Th is led appellant to miss his drug testing appointments and he was taken into custody in December 2010. Dr. Seymour noted appellant had a diagno sis for Bipolar Disorder, Type 1. Appellant had been prescribed Abilify by his psychiatrist and, more recently, Risperdal. Appellant had a history of inconsistent complia nce with taking his prescribed medication. Appellant did not consistently take Risper dal because it made hi m tired and would only take it if he began feeling manic. Although appellant’s psychiat rist had recommended monthly psychiatric medica tion management and psycho therapy twice a week, and appellant had been referred to the Fresno Count y Mental Health Office, appellant did not pursue that referral. Appellant did continue to see his psychiatrist, although he failed to obtain psychotherapy.6. Appellant was not currently receiving his prescribed medication and stated that only Paxil is prescribed in the jail. Appella nt was experiencing cyclical mood shifts, but his baseline mood was depressed. Appellant re ported that he did better during his time in jail than when he was in a mental health p od, which he found trau matizing. Appellant denied becoming psychotic in jail. Dr. Seymour noted that marijuana use can exacerbate bipolar symptoms. Dr. Seymour’s diagnos tic impression was that appellant suffered from Bipolar Disorder, Type I, manic, with m oderate severity and a history of psychotic symptoms. Dr. Seymour furt her found appellant suffered from cannabis abuse. Dr. Seymour concluded that appellant was showing better insight into his bipolar diagnosis than when he previously saw D r. Seymour and had a be tter understanding of
the need for treatment compliance. In the past, appella nt had used his intelligence to rationalize his treatment choices, but this had led to the wrong conclusion and resulted in his use of marijuana and failure to comply w ith probation. Dr. Seymour did not believe appellant had a criminal orient ation and his failure to comp ly with probation conditions was not a function of disrespect or disregar d of probation requirements. Dr. Seymour attributed appellant’s choices as a result of hi s disordered thinking, which is a feature of his illness and lack of adequate treatment. Dr. Seymour recommended that appellant be returned on probation and pl aced on a Comprehensive Alco hol Program (CAP). In the CAP, appellant would be placed in a 30-day residential treatment program with aftercare

treatment. Sentencing Hearing At the sentencing heari ng on April 6, 2011, the co urt initially stated it had
reviewed documentation from Alternative Sentencing Choices. Defense counsel argued that appellant could be placed in the New Life Community Se rvices treatment facility and7. the court could reinstate appellant’s proba tion. Defense counsel explained that appellant’s parents were willing to take appe llant to treatment and to pay for the cost. 4 The prosecutor noted when Judge Peña placed appellant on probation, he warned appellant that he would only get one chan ce for probation. The prosecutor stated appellant was noncompliant on probation and would continue to remain noncompliant should probation be reinstat ed. The prosecutor argued there was no one who could promise that appellant would take his medica tions and obtain treatment because appellant had previously failed to take medicati ons and participate in treatment. The prosecutor further argued that Judge Peña placed appellant in county jail for 365 days with the contemplati on he would remain incarcerate d the entire time, and “there would be no local alternative if he messed up. ” The prosecutor stated, “[s]o I’m certainly not in any way, shape or form comfortable with any time waiver s or that type of stuff.” The prosecutor referred to three attempts made by appellant for modification of his probation during his incarceration in jail, but Judge Peña denied those requests. The prosecutor argued there was no local alternativ e available to appellant because he had
served as much local time as he could. Th e prosecutor believed th e “only proper thing for the court to do is to sentence [appellant] to prison.” The prosecutor dismissed the psychological reports as irrelevant to the issue of proper punishment and asked the court to se ntence appellant to prison because he was noncompliant, absconded from probation, and di d not take drug test s. The court noted that appellant had “a ton” of time credits and asked the prosecutor about a local alternative. The prosecutor ag ain stated there was none. The court noted that appellant was not taking his medication, running out of medication and using marijuan a, and failing to drug test. The court called this a

4 According to informati on in the Alternative Senten cing Report, the New Life Community Services treatment fac ility is an inpatient program.8. conscious decision by appellant because he knew he was going to test dirty. The court noted it had no doubt appellant suffered from a mental illness, a nd he had been given every opportunity to deal with those issues but decided not to do what he was supposed to do. The court noted this was a very seri ous case and appellant had been given the opportunity to deal with his i ssues and failed to do so. Defense counsel argued that appellant no w accepts his mental illness, understands the consequences, and is now doing better me ntally. Defense counsel argued appellant was a bright person with a mental illness. Co unsel asked the court to return appellant “to [p]robation, to waive his time credits, have t hose hang over his head and give him this year or so of treatment, and give his fam ily the opportunity to ... monitor him.” The prosecutor responded th at appellant already had a prison sentence hanging over his head and failed to comply with th e terms of probation. The prosecutor was further concerned with placing appellant on family monitoring becau se it placed a burden on appellant’s family to contact probation if appellant was in noncompliance with his conditions of probation. The court stated it could not make appella nt’s family his prob ation officers and noted that appellant’s problem was he “viola ted probation here in such a way that I don’t believe that I can put you back on probation.” The court fu rther stated that appellant continued to do things even when he kn ew they were wrong. The court observed appellant was doing well in jail for four months and the court could not ignore that fact. The court found appellant was not a suitable ca ndidate for further grants of probation and sentenced him to prison.
DISCUSSION Prosecutor’s Sentencing Argument Appellant contends the prosecutor misled the trial court by arguing that appellant was not entitled to local time, there were no local sentencing alternatives for appellant, and the only option for the trial court was to sentence appellant to prison. Appellant’s9. argument is based on People v. Johnson (1978) 82 Cal.App.3d 183, 185-188 ( Johnson ),
which held that where a defendant has alrea dy spent time in county jail and thereafter commits a violation of probati on, the trial court is not faced with only two choices: (1) ignoring the probation violatio n; or, (2) a state prison sentence. The court may choose the third alternative of permitting the defend ant to waive any custody credits and commit the defendant to county jail ag ain for up to a year. ( Ibid .) We reject this contention. We begin our analysis with the general rule that the trial court is presumed to have
been aware of and followed the applicable law. ( People v. Stowell (2003) 31 Cal.4th 1107, 1114; People v. Mosley (1997) 53 Cal.App.4th 489, 496-497.) Under Evidence Code section 664, there is also a legal pres umption that official duties are regularly performed. Appellant is correct that the prosecutor argued there was no lo cal alternative to a state prison sentence. Appellant has taken the prosecutor’s argument out of context. The prosecutor argued that Judge Pe ña had placed appellant in co unty jail for 365 days with the contemplation he would remain incarcerat ed the entire time, and “there would be no local alternative if he messed up.” The prosecutor further stated, “[s]o I’m certainly not in any way, shape or form comfortable with any time waivers or that type of stuff .” (Emphasis added.) Time waivers are used in the context of the procedure set forth in the
Johnson case. During argument, defense counsel did request that the trial court permit appellant the opportunity to waive his custo dy credits. The prosecutor did not mislead the trial court on sentencing alterna tives and, in effect, discussed the Johnson procedure in his argument as a legal alte rnative that should be rejected. Furthermore, read within the context of his entire argument, the prosecutor did not want appellant placed in any local alternative to prison because appellant had failed to obtain proper treatment for his me ntal illness, failed to drug test , failed to regularly meet with his probation officer, and failed to par ticipate in psychotherapy as recommended by his own evaluating psychologi st, Dr. Seymour. The prosecutor argued that the only10. proper sentence for appellant was a state pris on sentence. In so arguing, the prosecutor was not misleading the trial court but was aski ng the court to reject local sentencing alternatives, including the Johnson procedure that the prosecutor referenced in his opening argument to the court. Appellant argues that the trial court was st ill misled as to lo cal alternatives for sentencing because when the cour t inquired of the prosecutor, the prosecutor replied that there were no local sentencing a lternatives. Again, as we read the record, it is clear that not only the prosecutor, but the trial court wa s concerned about the conscious decisions appellant made to violate his probation. In this context, the trial court concluded that local sentencing alternatives were not adeq uate in appellant’s case because appellant failed to comply with the te rms of his probation, including receiving treatment for his
mental health issues. We find that on the record, read as a whol e, the prosecutor, defense counsel, and
the trial court were aware of the Johnson procedure as a senten cing alternative. We further find that given appellant’s failure to comply with the conditions of probation and the seriousness of the offense, the trial cour t would not have consid ered any sentencing alternative to appellant’s commitment in state prison. Alleged Ineffectiveness of Trial Counsel Appellant argues that his trial counsel was ineffective for failing to rebut the prosecutor’s argument that there was no local a lternative to a prison se ntence. We do not find this argument persuasive. The defendant has the burden of proving ine ffective assistance of trial counsel. To prevail on a claim of ineffective assistance of trial counsel, the de fendant must establish not only deficient performance, which is perfo rmance below an obje ctive standard of reasonableness, but also prejudice. A c ourt must indulge a st rong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance. Tactical errors are generally not deemed reversible. Counsel’s decisionmaking is11. evaluated in the context of the available facts. To the extent the reco rd fails to disclose why counsel acted or failed to act in the ma nner challenged, appellate courts will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or, unless there simply could be no satisfactory e xplanation. Prejudice must be affirmatively proved. The record must a ffirmatively demonstrate a reas onable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. ( People v

. Maury (2003) 30 Cal.4th 342, 389.)
We do not find that defense counsel’s re quest for reinstatement of probation falls below an objective standard of reasonableness. It appears to be a reasonable tactical choice within normal professional practice. 5 Indeed, it appears that all of the parties were
aware of the Johnson procedure as a sentencing alternative, even if it was not so denominated by the prosecut or or defense counsel during their arguments at the sentencing hearing. Under the facts of this case, we do not view defense counsel’s failure to argue for the Johnson procedure to fall below the objective standard of reasonable professional norms. This is especially the case where defense counsel proposed a local placement alternative to a prison sentence, di scussed the possibility that appellant waive his custody credits, and the evaluating psyc hologist recommended a local CAP program in lieu of a state prison sentence.
DISPOSITION The judgment is affirmed.

5 Even if counsel’s tactics during the heari ng could be categorized as a tactical error, such errors are not usually deemed reversible.