P. v. Zuniga

1
Filed 8/10/07 P. v. Zuniga 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
EDWARD DOMINIC ZUNIGA,
Defendant and Appellant.
C053605
(Super. Ct. No.
CM021865)
The trial court terminated probation and sentenced
defendant Edward Dominic Zuniga to state prison for the upper
term of three years after he admitted his second violation on
his 2005 grant of probation for possession of a short-barreled
shotgun.
On appeal, defendant contends (1) the court’s imposition of
the upper term without a jury finding of aggravating factors
beyond a reasonable doubt violated his Sixth and Fourteenth
Amendment rights under Blakely v. Washington (2004) 542 U.S. 296
[124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Cunningham v.

-- 1 of 12 --

2
California (2007) 549 U.S. ___ [127 S.Ct. 856; 166 L.Ed.2d 856]
(Cunningham), (2) the court erred in failing to state the
reasons for imposing the upper term, (3) any failure to object
at sentencing to the court’s failure to state such reasons was
the result of ineffective assistance of counsel, and (4) trial
counsel’s failure to argue for the low or middle term
constituted ineffective assistance of counsel. We shall affirm
the judgment.
FACTUAL AND PROCEDURAL BACKGROUND 1
A. The Short-Barreled Shotgun Offense
On October 6, 2004, police responded to a report of a
struggle between defendant and his girlfriend over a gun that
resulted in an accidental shooting injury. Several guns,
including a short-barreled shotgun were discovered; defendant
admitted the items found were his.
Defendant was charged with possession of a short-barreled
shotgun, a felony, in violation of Penal Code section 12020,
subdivision (a)(1)2 (count 1) and possession of property with the
serial number removed, a misdemeanor, in violation of section
537e, subdivision (a)(1) (count 2).
1 Given defendant’s plea and stipulation to a factual basis, the
facts are briefly summarized from the probation report.
2 Hereafter, undesignated statutory references are to the Penal
Code.

-- 2 of 12 --

3
On January 18, 2005, defendant entered a negotiated plea of
no contest to count 1 in exchange for dismissal of count 2 with
a Harvey3 waiver and no immediate state prison.
On March 28, 2005, noting defendant’s suitability for
probation was “marginal,” the court suspended imposition of
sentence, placed defendant on three years formal probation with
specified terms and conditions, ordered that he serve 120 days
in jail (minus custody credits) and assessed various fees and
fines.
B. The Probation Violations
On August 25, 2005, the probation department filed a
petition alleging defendant violated the terms and conditions of
his probation by failing to report as required.
On December 7, 2005, the probation department filed a first
amended petition adding an allegation that defendant was found
to be under the influence of alcohol in violation of probation.
On December 19, 2005, defendant admitted he violated
probation as alleged. Pursuant to the court’s order, sentencing
was suspended and defendant was temporarily placed in a
diagnostic facility for a substance abuse and psychological
evaluation.
On May 4, 2006, the court reinstated probation and ordered
defendant to immediately contact Alcohol and Drug Services
(ADS).
3 People v. Harvey (1979) 25 Cal.3d 754 (Harvey).

-- 3 of 12 --

4
On June 2, 2006, the probation department filed a second
petition alleging defendant again violated probation by failing
to report as required.4
On July 27, 2006, defendant admitted the alleged probation
violation.
On August 24, 2006, after reading and considering “the
probation report in this case . . . and the supplemental report
after the violation of probation,” and entertaining argument
from counsel, the court ruled as follows: “[A]s to Count [1],
probation is terminated unsuccessfully. [¶] [Defendant] is
sentenced to the three-year upper term. Circumstances in
aggravation outweigh those in mitigation.” The court imposed a
concurrent sentence of six months in jail as to count 2.
Defendant filed a timely notice of appeal.
DISCUSSION
Relying on Blakely and Cunningham, defendant contends the
court’s imposition of the upper term violated his constitutional
right to a jury trial because the court “did not identify the
aggravating factors on which it relied” and, even if it had, no
aggravating factor was tried by a jury and proven beyond a
reasonable doubt. We disagree.
The United States Supreme Court held in Cunningham that,
under California’s Determinate Sentencing Law, the middle term
4 As a result of defendant’s failure to appear at the June 15,
2006 hearing on the petition, the court revoked probation and
issued a bench warrant for his arrest.

-- 4 of 12 --

5
is the statutory maximum which a judge may impose solely based
on the facts reflected in the jury verdict or admitted by the
defendant. Thus, except for a prior conviction, any fact that
increases the penalty for a crime beyond the middle term must be
tried to the jury and proved beyond a reasonable doubt.
(Cunningham, supra, 549 U.S. ___, at p. ___ [127 S.Ct. 856, 862;
166 L.Ed.2d 856, 862].)
Applying Cunningham, in People v. Black (July 19, 2007,
S126182) ___ Cal.4th ___, ___ [2007 Cal. Lexis 7604, *29] (Black
II), our Supreme Court recently held that “imposition of the
upper term does not infringe upon the defendant’s constitutional
right to jury trial so long as one legally sufficient
aggravating circumstance has been found to exist by the jury,
has been admitted by the defendant, or is justified based upon
the defendant’s record of prior convictions.”
The People first assert that defendant forfeited the issue
because he failed to raise it in the trial court. The People
are wrong. Defendant was sentenced on August 24, 2006, well
after our Supreme Court had already decided People v. Black
(2005) 35 Cal.4th 1238 (Black), which held that a defendant does
not have a right to have a jury determine aggravating factors
used to impose the upper term. (Id. at p. 1244.) Black was
controlling law at the time of defendant’s sentencing.
Defendant was not required to make a futile objection. It is
pointless to require a defendant to ask a trial court to
overrule a decision of the California Supreme Court. (Moradi-

-- 5 of 12 --

6
Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287,
292, fn. 1.)
We turn next to the merits of defendant’s claim. The
People argue the trial court found defendant’s prior
unsatisfactory performance on probation to be an aggravating
factor, and defendant’s admission of the alleged probation
violation established that fact, thus alleviating the need for a
jury trial as to that factor. Because the record enables us to
draw the inference that the court relied on defendant’s prior
unsatisfactory performance on probation as the overriding
aggravating factor in imposing the upper term, we agree there
was no error.
Where there has been no reliance by the sentencing court on
a fact not found by a jury or admitted by the defendant, there
is no Blakely error. (Blakely, supra, 542 U.S. at p. 303 [159
L.Ed.2d at p. 413.)
Here, in sentencing defendant to the upper term, the trial
court relied on both the original probation report and the most
recent supplemental probation report dated August 24, 2006. The
original report speaks generally about aggravating and
mitigating factors as follows: “The seriousness of the instant
offense cannot be ignored. Despite his young age and lack of
criminal history, [defendant] engaged in violent conduct by
combining the illegal firearms with his drug use, thereby
presenting himself as a danger to society when he is ingesting
controlled substances. Additionally, [defendant’s] prior

-- 6 of 12 --

7
performance on probation was unsatisfactory. In light of the
foregoing, it appears circumstances in aggravation outweigh
those in mitigation.” The original probation report also
reflects defendant’s juvenile criminal record, including two
violations of probation, the second of which was “terminated as
unsuccessful.”
The August 24, 2006 supplemental report focuses entirely on
the fact that defendant “has been tried and failed on
probation,” including the fact that defendant’s “previous grant
of juvenile probation resulted in an unsuccessful termination.”5
Defendant’s two separate admissions on December 19, 2005
and July 27, 2006, that he violated probation established the
fact of his prior unsatisfactory performance on probation as an
aggravating factor. We infer, from the supplemental report’s
discussion of defendant’s prior unsatisfactory performance on
probation that the court relied on that factor in imposing the
upper term.6 We note that when the court originally ordered
5 The first supplemental probation report, dated May 4, 2006,
speaks generally about defendant’s unsatisfactory performance on
both juvenile and adult probation, notes the seriousness of the
crime, and defendant’s substance abuse problem, his
“youthfulness” and his lack of criminal history, and concludes
that “circumstances in aggravation outweigh those in
mitigation . . . .”
6 Acknowledging the prohibition against increasing a defendant’s
sentence based solely on conduct that occurred after the grant
of probation or a reinstatement thereof (People v. Harris (1990)
226 Cal.App.3d 141, 145-146, People v. Goldberg (1983) 148
Cal.App.3d 1160, 1163 and fn. 2 [consideration of post-

-- 7 of 12 --

8
defendant released on probation it said to defendant if “you
mess up you go for three years. Do you understand?” The fact
that the trial court may also have had in mind the additional
aggravating factor identified in the original probation report,
i.e., the seriousness of the offense due to defendant’s use of
an illegal firearm while under the influence of controlled
substances, is of no consequence given its reliance on one
aggravating circumstance that was established by means that
satisfy the requirements of the Sixth Amendment. (Black II,
supra, ___ Cal.4th at p. ___ [2007 Cal. Lexis 7604, at p. *29].)
Because defendant’s admitted unsatisfactory prior performance on
probation renders him eligible for the upper term, he “was not
legally entitled to the middle term, and his Sixth Amendment
right to jury trial was not violated by imposition of the upper
term sentence.” (Id. at p. 41, italics omitted.)
Defendant contends the trial court erred by failing to
state its reasons for imposing the upper term. We disagree. At
the outset, the court indicated it intended to “follow the
probation-grant conduct forbidden when imposing sentence after
revocation of probation]), we note that defendant’s
unsatisfactory performance on probation was an aggravating
factor in both the original probation report and the May 4, 2006
supplemental report, he admitted violating probation on December
19, 2005, the court reinstated probation on May 4, 2006.
Because defendant’s failure on probation was a circumstance that
existed at the time probation was originally granted and when it
was reinstated, that aggravating factor could properly influence
the trial court’s imposition of the upper term when probation
was later revoked. (Harris, supra, 226 Cal.App.3d at pp. 145,
147.)

-- 8 of 12 --

9
recommendation” in the supplemental report. After hearing
argument from counsel and the defendant himself, the court
indeed followed that recommendation, pronouncing that probation
was “terminated unsuccessfully” and, finding the aggravating
factors outweighed those in mitigation, imposed the upper term.
In stating that the “circumstances in aggravation outweigh those
in mitigation,” we infer the court was referring to the original
presentence report and the supplemental report as prefaced by
his statement before sentencing that he read and considered
those reports. Given those findings, in conjunction with the
evaluation of defendant’s behavior on probation in the
supplemental report, there can be little doubt the upper term
was imposed based on defendant’s history of admitted juvenile
and adult violations of probation.
Defendant contends his failure to object to any perceived
failure by the court to state its reasons for imposing the upper
term was the result of ineffective assistance of counsel. The
People argue defendant “waived”7 his claim because he did not
object at trial and, even if he had, his claim fails on the
merits. The People are correct on both counts.
Defendant made no objection when the court pronounced the
upper term sentence. His failure to object on the grounds that
7 The correct legal term for loss of right based on failure to
assert it in a timely fashion is forfeiture, not waiver.
(People v. Saunders (1993) 5 Cal.4th 580, 589-590; cf. In re
S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)

-- 9 of 12 --

10
the court failed to state any reasons for the upper term
forfeits his claim on appeal. (People v. Scott (1994) 9 Cal.4th
331, 353 [forfeiture applies to claims the trial court
“misweighed the various factors, or failed to state any reasons
or give a sufficient number of valid reasons” for its sentencing
choices].)
In any event, even if the contention had been preserved for
appeal, it lacks merit. To establish ineffective assistance,
defendant bears the burden of showing (1) counsel’s performance
was deficient, falling below an objective standard of
reasonableness under prevailing professional norms, and (2)
absent counsel’s error, it is reasonably probable that the
verdict would have been more favorable to him. (Strickland v.
Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674] (Strickland);
People v. Hawkins (1995) 10 Cal.4th 920, 940, disapproved on
other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89.)
In order to show trial counsel’s performance was deficient,
defendant must show that counsel “failed to act in a manner to
be expected of [a] reasonably competent attorney[] acting as [a]
diligent advocate[].” (People v. Pope (1979) 23 Cal.3d 412,
425.) If the record fails to show why counsel acted or failed
to act as he did, the contention fails unless counsel failed to
provide an explanation upon request or there could be no
satisfactory explanation. (People v. Mendoza Tello (1997) 15
Cal.4th 264, 266-268; People v. Pope, supra, at p. 425.)

-- 10 of 12 --

11
Here, the court adequately articulated its reason for
imposing the upper term. Consequently, there was no need for an
objection by counsel. We note further that, in response to the
court’s statement that it intended to follow the recommendation
in the supplemental probation report, counsel requested that
defendant be reinstated on probation, telling the court
defendant was prepared to “comply with probation and change his
life” with the help of people who had recently come into his
life. We infer from his argument to the trial court that
counsel understood the aggravating circumstance at issue was
defendant’s prior unsatisfactory performance on probation and
the fact that the court’s tentative ruling was based on that
factor. Thus, when the court issued a final ruling consistent
with its tentative decision, we also infer that counsel
understood that the basis for the ruling was defendant’s prior
unsatisfactory performance on probation. Under those
circumstances, we defer to counsel’s reasonable decision not to
request further explanation from the court. (People v. Weaver
(2001) 26 Cal.4th 876, 925; see also People v. Freeman (1994) 8
Cal.4th 450, 484.)
We similarly reject defendant’s claim of failure of his
counsel to argue for the low or middle term. The court already
had before it the mitigating circumstances set forth in the
earlier probation reports. Given that, and defendant’s admitted
violation of probation (as well as his previously admitted
probation violations) establishing the aggravating circumstance,

-- 11 of 12 --

12
there was little left for counsel to add for the court’s
consideration.
DISPOSITION
The judgment is affirmed.
CANTIL-SAKAUYE , J.
We concur:
BLEASE , Acting P.J.
RAYE , J.

-- 12 of 12 --