1 Filed 5/7/15 P. v. Norman CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento)

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THE PEOPLE, Plaintiff and Respondent,

v. JERRIN NORMAN, Defendant and Appellant. C073736 (Super. Ct. No. 10F01075)

The trial court found defendant Jerrin Norm an in violation of probation, sentenced him to six years in state prison, and impo sed various fees and fines. On appeal, defendant contends the trial court abused its discretion in imposing an upper-term sentence in violation of California Rules of Court, rule 4.43 5(b)(1) (hereafter rule 4.435(b)(1)) 1 . He further contends, and the Pe ople concede, the restitution and

1 Rule 4.435(b)(1) provides: “(b) On re vocation and terminati on of probation under section 1203.2, when the se ntencing judge determines th at the defendant will be committed to prison: [¶] (1 ) If the imposition of sentence wa s previously suspended, the judge must impose judgment and sentence after consideri ng any findings previously2 parole revocation fines (Pen. Code, §§ 1202.4, 1202.45) must be reduced to the statutory minimum amounts in effect at th e time of imposition of sentence. 2 Accepting the People’s concession as to the fines, we modify the judgment and otherwise affirm the judgment as modified. FACTUAL AND PROCED URAL BACKGROUND Underlying Crime On September 3, 2010, defendant was charged by amended complaint in case No. 10F01075 with attempted murder (§§ 664/187, subd. (a )—count one), assault with a semiautomatic firearm (§ 245, subd. (b)—count two), assau lt with a firearm (§ 245, subd. (a)(2)—count three), discharge of a firearm at an inhabited dwelling (§ 246— count four), and two counts of possession of a concealable weapon (§ 12025, subd. (b)(6)—counts six and seven). The comp laint also alleged as to counts one, two, three, four, and seven that defendant committ ed the offenses while released from custody on a primary offense in case No. 08F08346 (§ 12022.1), and, as to all counts, that defendant committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)). On December 10, 2010, defe ndant entered a negotiated plea of no contest to one count of possession of a concealable weap on (count six) and admitted the gang enhancement in exchange for dismissal of al l remaining charges and allegations against him (including pending case No. 08F08346), and a stipulated grant of five years’ formal probation, plus one year in co unty jail with credit for time served. Th e factual basis for

made and hearing and determining the matters enumerated in rule 4.433(c). [¶] The length of the sentence must be based on circ umstances existing at the time probation was granted , and subsequent events may not be consid ered in selecting the base term or in deciding whether to strike the additional punishment for enhancements charged and found.” (Italics added.)

2 Unspecified statutory refere nces are to the Penal Code.3 the plea was as follows: On October 3, 2008, while at a light rail station with his brother, Darrin Norman, and other members of a crim inal street gang know n as the “Pay Me Boys,” defendant was found to be in possession of a .38-caliber handgun. 3 At the January 7, 2011, sentencing hearin g, the trial court suspended imposition of sentence and placed defendant on five years’ formal probati on, subject to various terms and conditions. The court also imposed “minimum fines and fees.” First Violation of Probation On April 5, 2011, the dist rict attorney filed a petition for violation of probation alleging defendant failed to obey all laws by making criminal threats (§ 422) and committing domestic abuse (§ 2 73.5, subd. (a)) as allege d in case No. 11F02389. The hearing on the April 5 petition was hear d concurrently with the jury trial in case No. 11F02389. The jury acquitted defendant on the section 422 charge but was unable to reach a verdict on the remaining charge . Nonetheless, the trial court found by a preponderance of evidence that defendant violat ed the terms of his probation as alleged in the April 5 petition. On December 2, 2011, the court revoked and reinstated probation subject to the original terms and conditions, plus an additio nal year in county ja il with credit for time served. Second Probation Violation On June 12, 2012, the district attorn ey filed a second petiti on for violation of probation alleging, among othe r things, that defendant was found to be in possession of

3 With the exception of the other firearm possession charge that occurred on July 22, 2009 (count seven), the rema ining charges against defendant stemmed from an incident that occurred on May 23, 2009, involving codefendants Darrin Norman, Clayton Brannon, and Johnny Lewis, none of whom is a party to this appeal.4 ammunition in violation of section 30305, su bdivision (a). The trial court sustained the petition. On March 5, 2013, the trial court termin ated defendant’s probation and sentenced him to the upper term of three years in state prison, plus a consecutive three-year term for the gang enhancement, for an ag gregate term of six years in state prison. In selecting the upper term, the court stated as follows: “The Court selects the upper term given the defendant’s poor performance on probation up to the last reinstatement of probation. This period of probation is properly considered under People [ v. ] Black [(]2009[)] 176 Cal.App.4th 145 [( Black )]. [ 4 ] “Further, the defendant’s poor performance on probation is properly considered for both denial of probation and the imposition of the upper term pursuant to People [ v. ]
Bowen [(]1992[)] 11 Cal.App.4th 102]. “The Court notes for the record that it is not considering the defendant’s failure to comply with probation terms be tween the last reinstatement of probation and the last revocation of probation. The Court does not consider this period pursuant to [rule 4.435(b)(1)].” The court also imposed “mandatory fe es in their minimum amounts,” including “the standard restitution fine in its minimum amount . . . of $240 pursuant to Penal Code Section 1202.4” and “[t]he same amount” pursuant to sec tion 1202.45, stayed pending successful completion of parole. Defendant filed a timely notice of appeal.

4 Relying on People v. Harris (1990) 226 Cal.App.3d 141 ( Harris ), the Court of Appeal in Black recognized an except ion to rule 4.435(b)(1) that allows the sentencing court to “consider defendant’s performance on proba tion from the time it was originally granted . . . until it was reinstated for the final time . . . .” ( Black , supra , 176 Cal.App.4th at p. 151.)5 DISCUSSION
I Imposition of Upper-Term Sentence Defendant contends the trial court err oneously based its decision to impose the upper term on events occurring after the in itial grant of probatio n in violation of rule 4.435(b)(1). Acknowledging his failure to object below, defendant asserts the issue was not forfeited on appeal, but should we find otherwise, any failure to object was the result of ineffective assistance of counsel. We conclude de fendant forfeited his claim and his attorney was not ineffective for failing to object. A defendant’s failure to object to the tr ial court’s sentencing determinations when given a “meaningful opportunity” to do so forfeits the claim on appeal. ( People v. Scott (1994) 9 Cal.4th 331, 355-356 ( Scott ); see People v. de Soto (1997) 54 Cal.App.4th 1, 7-8 [failure to impose a specific objection at sentencing forfeits claim on appeal].) A “meaningful opportunity” to object to the court’s sentencing determinations occurs when, “during the course of the senten cing hearing itself and before objections are made, the parties are clearly apprised of th e sentence the court intends to impose and the reasons that support any discretionary choices.” ( Scott , supra , 9 Cal.4th at p. 356.) “The parties are given an adequate opportunity to seek su ch clarifications or changes if, at any time during the sentencing hearing, the trial court describes the sentence it intends to impose and the reasons for the sentence, and th e court thereafter considers the objections of the parties before the actual sentencing. The court need not expressly describe its proposed sentence as ‘tentative’ so long as it demonstrates a willingness to consider such objections.” ( People v. Gonzalez (2003) 31 Cal.4th 745, 752.) Here, judgment and sentencing occurred over the course of three days. The initial proceedings took place on December 7, 2012, a nd December 21, 2012. While the record on appeal does not include repo rter’s transcripts for either of those proceedings, it does include minute orders which reflect that on De cember 7, 2012, the trial court (J. Connelly6 presiding) announced its “tentative decision to reject probation[’s] recommendation and sentence [defendant] to state prison,” an d that on December 21, 2012, the court (J. Connelly presiding) “stated . . . the history behind this continuing sentencing and the Court’s intended decision,” “identified the le gal issue surrounding this sentence re [rule 4.435(b)]” and “cited [c]ounsel to [ Black , supra ,] 176 Cal.App.4th [at pages] 150- 151 and to [ Harris, supra ,] 226 Cal.App.3d 141.” The mi nute orders further reflect that sentencing was continued to a llow defendant the opportunity to obtain documents in mitigation. At the final sentencing hearing on Marc h 5, 2013, for which there is a reporter’s transcript, the trial court (J. Sueyoshi presid ing in light of J. Connelly’s retirement) reiterated Judge Connelly’s previously stated intent to “deny probation and sentence the defendant to the maximum time available under the law which is in this case up to seven years.” Having considered the probation report, defendant’s written statement and documents in mitigation, statements from de fendant’s family memb ers, and argument by counsel for both parties, the court denied pr obation and sentenced de fendant to the upper term of three years for the pr incipal offense, plus three years (the middle term) for the enhancement. No defense objec tion is noted in the record. Defendant claims the alleged error “was clearly raised on December 21, 2012, and clearly ruled upon at the time of sentencing,” and that an objection would otherwise have been futile in light of the sentencing court’s reliance on Black, supra , 176 Cal.App.4th 145. The claim lacks merit. There is no indication in the reco rd that defend ant’s attorney objected to Judge Conne lly’s tentative decision to consid er defendant’s prior performance on probation in sentencing him “to the maxi mum time available under the law.” The notation in the December 21, 2012, minute orde r reveals only that the court was relying

on Black and Harris for purposes of sentencing, not th at defendant objected on those grounds. And despite the oppo rtunity to object to the cour t’s tentative decision during the course of either of the December 2012 he arings or at any time during the more than7 two months before imposition of sentence on March 5, 2013, no such objection was forthcoming from defense counsel. Defendant asserts any failure to object to the court’s consideration of his conduct on probation in choosing the upper-term senten ce was the result of ineffective assistance of counsel. This claim also lacks merit. A defendant claiming ineffective assistan ce of counsel has the burden to show (1) counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance resulted in prejudice. ( Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693-694, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) That is, “there is a reasonable probability that , but for counsel’s unprofessional errors, the result would have been different.” ( People v. Kelly (1992) 1 Cal.4th 495, 520.) Defendant cannot establish that his couns el provided ineffective assistance; the trial court’s imposition of the upper term based on defendant’s poor performance on probation prior to the last revocation was pr oper. Defendant was granted probation after pleading no contest to possession of a c oncealable weapon a nd admitting a gang enhancement. Here, as in Harris and Black, defendant had his original grant of probation revoked and then reinstated. ( Harris , supra , 226 Cal.App.3d at pp. 143-144; Black , supra , 176 Cal.App.4th at pp. 148-149.) Here, as in Harris and Black , “the trial court was entitled to consider defendant’s perfo rmance on probation fr om the time it was originally granted . . . until it was rein stated for the final time . . . .” ( Black , at p. 151; see also Harris , at p. 147.) We decline defendant’s i nvitation to reject the holdings in those

cases. II Imposition of Minimum Restitution Fines Defendant contends, and the People agree, that the trial court erred when, contrary to its stated intent to impose only “ma ndatory fees in their minimum amounts,” it8 imposed a $240 restitution fine (§ 1202. 4) and imposed but stayed a $240 parole revocation fine (§ 1202.45). The parties also agree the fines should be reduced to $200. We agree. Defendant committed his felony offense in 2008. The ve rsion of section 1202.4 in effect at that time provided that the mini mum restitution fine th at could have been imposed was $200. (§ 1202.4, subd. (b)(1); see People v. Martinez (2014) 226 Cal.App.4th 1169, 1189 [fi nding minimum restitution fine ba sed on date of offense, not date of sentencing].) Likewise, because section 1202.45 required that the amount of the parole revocation fine imposed be “in the same amount as” the restitution fine imposed pursuant to section 1202.4, subdivis ion (b), the minimum parole revocation fine that could have been imposed was also $200. At the December 2010 plea hearing, the trial court stated it “could impose a restitution fine of not less than $200 nor [ sic ] more than $10,000 . . . .” At the March 2013 sentencing hearing, the court stated, “the standard restitution fine in its
minimum amount shall be imposed of $240 pursuant to Penal Code Section 1202.4,” and imposed but stayed a parole revocation fine in the “same amount” pursuant to section 1202.45. The court later reiterated that “[t]he only fees th at are imposed are the mandatory fees in their minimum amounts. ” The court’s statements at the 2010 plea hearing clear ly demonstrate that the sentencing judge understood $2 00 was the applicable minimum restitution fine and simply misspoke when, at the 2013 sentencing hearing, the judge stated “the standard restitution fine in its minimum amount shall be imposed of $240.” Accordingly, we will modify the judgment to reduce the restitution and parole revocation fines to $200 each. DISPOSITION The judgment is modified to reduce th e restitution fine (§ 1202.4, subd. (b)) and the corresponding parole revocation fine (§ 1202.45) from $240 to $200 each. As modified, the judgment is affirmed. The tria l court is directed to prepare an amended9 abstract of judgment reflecting the modifica tion and to send a certified copy of said amended abstract to the Department of Corrections and Rehabilitation.

RAYE , P. J.

We concur:

BLEASE , J.

BUTZ , J.