People v. Foote

THE PEOPLE, Plaintiff and Respondent, v. DYLAN RUSSELL FOOTE, Defendant and Appellant.

C090372

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)

October 15, 2020

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. S18CJR0006C)

FACTUAL AND PROCEDURAL BACKGROUND

In July 2017, defendant Dylan Russell Foote was convicted in El Dorado County of corporal injury on a spouse or cohabitant and was sentenced to serve three years in state prison. The court also issued a three-year domestic violence criminal protective order. Nothing in the record indicates that defendant appealed the judgment.

In May 2018, defendant was released from prison and placed on three years' postrelease community supervision with various terms and conditions, including that he obey all laws. Just two weeks after his release, the El Dorado County District Attorney filed a petition to revoke defendant's community supervision alleging that defendant failed to obey all laws by violating the protective order.¹ In June 2018, defendant admitted the violation and was sentenced to serve 150 days in the county jail; he did not appeal the court's order. He was released from county jail in August 2018.

In November 2018, probation filed a second petition to revoke defendant's community supervision, alleging that he committed trespass and vandalism.² Defendant admitted the vandalism violation and was reinstated on community supervision on the same terms and conditions as before.

In April 2019, probation filed a third petition to revoke defendant's community supervision, alleging that he twice tested positive for methamphetamine, that he failed to report to his probation officer as directed, and that he failed to obey all laws. He was arrested on April 23, 2019, for willfully obstructing or delaying a peace officer, disorderly conduct, and trespassing. Probation recommended that community supervision be revoked, that defendant serve 180 days in county jail, and that he be reinstated on community supervision.

The following month, in May 2019, defendant admitted the positive drug test and failure to report allegations, and the third allegation regarding new criminal offenses was dismissed. On May 31, 2019, the court sentenced him to serve 180 days in county jail with 103 days stayed and credit for the remaining 77 days. The court ordered him to enroll with probation in "MRT" counseling, engage in outpatient substance abusecounseling at El Dorado Mental Health, enroll in community college, obtain employment, and reenroll in DUI school and a batterer's treatment program. He was released from custody on May 31, 2019. Defendant did not object to the sentence imposed based on Proposition 36, or otherwise appeal the court's order.

On June 28, 2019, probation filed a fourth petition to revoke defendant's community supervision, alleging that he failed to report to probation, that he left California without permission, and that he failed to obey all laws after being arrested for trespassing in Douglas County, Nevada. Defendant subsequently denied the allegations, and a contested hearing was set for July 2019.

At the contested hearing, El Dorado County Probation Officer Jorge Soriano testified that he supervised defendant, and that defendant failed to check in with probation on May 31, 2019, as ordered. He also testified that he received a police report from the Douglas County Sheriff's Department stating that defendant was arrested in a Nevada casino for trespassing on June 9, 2019, and that he was under the influence of MDMA; defendant did not obtain Soriano's permission before leaving the state. Defense counsel did not cross-examine Soriano. Following the hearing, the court found defendant violated his community supervision. After the court made its finding, defendant objected because he felt he had been misrepresented and that he had tried to have his defense counsel present more evidence. The court did not substantively respond to defendant's objection, but set the matter for sentencing on the violation.

In August 2019, the trial court ordered defendant to serve 180 days in jail in the case, consecutive to the 103 days previously stayed. The court originally awarded him 47 days of actual credit plus 46 days of conduct credit for 93 days of total credit. The court subsequently increased defendant's credit by two actual days (for time in custody after he finished his custody time in Douglas County before being transferred back to El Dorado County) to 49 days, plus 48 days of conduct credit for a total of 97 days of credit. Defendant timely appealed without a certificate of probable cause.

DISCUSSION

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting that this court review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant filed a supplemental brief raising numerous issues, which we consider below.

ADouble Jeopardy

Defendant first argues that using his Nevada trespassing conviction to establish a violation of his community supervision conditions violated double jeopardy. We disagree.

"The double jeopardy clauses of the Fifth Amendment to the United States Constitution and article I, section 15, of the California Constitution provide that a person may not be twice placed 'in jeopardy' for the 'same offense.' " (People v. Anderson (2009) 47 Cal.4th 92, 103.) Double jeopardy "protects against a second prosecution for the same offense after conviction." (People v. Sloan (2007) 42 Cal.4th 110, 120-121.) The defendant bears the burden of demonstrating that double jeopardy applies. (People v. Mason (1962) 200 Cal.App.2d 282, 285.)

Here, defendant was not twice prosecuted for the same trespassing offense. Instead, it appears from the record that defendant was arrested for trespassing in Douglas County, Nevada, on June 9, 2019. He admitted the trespassing offense in Douglas County and was ordered to serve 10 days in jail with 30 days suspended. The Nevada trespassing arrest was then used to show that he failed to obey all laws as required by the terms of his community supervision at the contested revocation hearing in July 2019. Contrary to defendant's implicit contention, a community supervision revocation hearing, much like a parole or probation revocation hearing, is not a second criminal prosecution.(See In re Dunham (1976) 16 Cal.3d 63, 69 [recognizing parole and probation revocation hearings do not constitute criminal prosecutions]; see also People v. Osband (1996) 13 Cal.4th 622, 710-711 [introduction of evidence during penalty phase of capital murder trial of facts underlying defendant's prior misdemeanor battery convictions, as opposed to evidence merely of fact of convictions, did not violate defendant's double jeopardy rights].) Nor is any term of confinement ordered as a sanction for violating community supervision a "sentence." (People v. Murdock (2018) 25 Cal.App.5th 429, 434.) " 'California law carefully distinguishes between confinement for parole or [community supervision] violations on the one hand, and traditional "sentencing" for criminal convictions on the other. [Citation.] These two areas are separate and distinct.' " (Ibid.)

Because nothing in the record shows defendant was convicted of trespassing in California for the same conduct underlying the Nevada offense, defendant was not twice tried and punished for the same offense. He has thus failed to show double jeopardy applies.

BIneffective Assistance Of Counsel

Defendant next contends he received ineffective assistance of counsel at the contested revocation hearing on the fourth petition. Defendant, however, has failed to meet his burden to show his counsel was ineffective.

To establish a claim of ineffective assistance of counsel, defendant has the burden of demonstrating that his counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms and he was prejudiced by that deficiency. (People v. Lopez (2008) 42 Cal.4th 960, 966.) " 'Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." ' " (Ibid.)

"A defendant who raises the [ineffective assistance of counsel] issue on appeal must establish deficient performance based upon the four corners of the record." (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) " 'If the record "sheds no light on why counsel acted or failed to act in the manner challenged," an appellate claim of ineffective assistance of counsel must be rejected "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." ' " (People v. Lopez, supra, 42 Cal.4th at p. 966.) "A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding." (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267; see People v. Jones (2003) 29 Cal.4th 1229, 1254 [ineffective assistance claims properly resolved on direct appeal only where record affirmatively discloses no rational tactical purpose for counsel's act or omission].)

Based on the four corners of the appellate record, defendant has failed to carry his burden to establish that trial counsel provided inadequate representation at the contested revocation hearing. While it is true that defense counsel did...