People v. Rosen CA1/5

Filed 12/10/13 P. v. Rosen CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A137708 v. STEVEN GENE ROSEN, (Sonoma County Super. Ct. Nos. SCR-602757, Defendant and Appellant. SCR-609539, SCR-619606)

Steven Gene Rosen appeals from a judgment revoking his probation on felony drug convictions in three separate cases and sentencing him to an aggregate term of 11 years and four months, to be served in the local county jail, with the last three years to be served under mandatory supervision. (See Pen. Code, § 1170, subd. (h)(1), (2) & (5)(B)(i).) He contends the case must be remanded for resentencing because the court failed to state reasons for imposing consecutive sentences and his trial attorney provided ineffective assistance of counsel in failing to object. We affirm. FACTS AND PROCEDURAL HISTORY Appellant was charged with drug related offenses and enhancements in two separate cases, Nos. SCR-602757 and SCR-609539. On November 10, 2011, he pled no contest to one count of possession of methamphetamine in case No. SCR-602757 and one count of possession of morphine and/or Xanax in case No. SCR-609539, in exchange for dismissal of the remaining charges. (Health & Saf. Code, §§ 11377, subd. (a), 11350, subd. (a).) The court suspended imposition of sentence in both cases and placed

1

appellant on probation for three years, with conditions that included his participation in a residential treatment program at Solidarity House in San Mateo. Appellant did not report to Solidarity House as required and on February 1, 2012, he admitted a violation of probation and was ordered to serve 60 days in county jail pending the availability of a space at Solidarity House. On July 6, 2012, an information was filed charging appellant with multiple drug- related counts and enhancements in case No. SCR-619606. On August 9, 2012, he pled no contest to possession of oxycodone for sale and admitted two enhancement allegations based on prior drug-related convictions, in exchange for dismissal of the remaining charges and allegations. (Health & Saf. Code, §§ 11351; 11370.2, subd. (a).) The plea agreement included a stipulated term of 10 years (the four-year upper term for possession of oxycodone for sale, plus three years each on the enhancements), this term to be suspended. Appellant agreed to serve a year in county jail for the resulting probation violation in case Nos. SCR-602757 and SCR-609539, probation to terminate in those cases upon completion of that year, and to report to TASC (Treatment Accountability for Safe Communities) after his release from jail. The court accepted appellant’s plea, suspended execution of the 10-year term, dismissed the remaining charges, and ordered appellant to appear on August 16, 2012, to begin serving his one-year jail term. On August 16, 2012, the date he was due to surrender, appellant appeared in court and asked for two additional days to address personal matters before beginning his jail term. The court extended the time to report until 7:00 p.m. on August 17, 2012, but appellant failed to appear on that date. On December 19, 2012, he admitted a probation violation in all three cases based on this failure to appear. The sentencing hearing on all three cases was held January 10, 2013. The probation report recommended that probation be revoked and appellant be committed to an aggregate jail term of 11 years and four months, consisting of the 10-year term previously imposed in case No. SCR-619606 and eight-month consecutive terms (one- third the middle term) in case Nos. SCR-602757 and SCR-609539. It listed no factors in mitigation and four factors in aggravation: (1) Appellant had numerous prior