People v. Allen CA5

California Court of Appeal Jul 20, 2022 No. F082754Unpublished

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Holding. The court held that the defendant forfeited his challenge to the trial court's sentencing decision by failing to object in the trial court and failed to establish ineffective assistance of counsel regarding that omission.

Issues

Whether the defendant forfeited his challenge to the trial court's failure to impose a split sentence by failing to object at the sentencing hearing.
Whether trial counsel provided ineffective assistance by failing to object to the sentence imposed.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Our review indicates defendant forfeited the ability to challenge his sentence on appeal by not objecting in the trial court when the sentence was imposed”

“We are not persuaded by defendant’s assertion that his trial counsel’s failure to raise the issue below constitutes ineffective assistance of counsel.”

Filed 7/20/22 P. v. Allen 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F082754, F082755 Plaintiff and Respondent, (Super. Ct. Nos. MCR064869A, v. MCR063815)

FRED WILLIAM ALLEN, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Madera County. Ernest J. LiCalsi, Judge. Cynthia L. Barnes, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Smith, J. and Snauffer, J.

In this consolidated appeal, defendant Fred William Allen challenges the sentence imposed by the trial court as violating preferences set out in the relevant statutory language. Defendant further contends that because trial counsel failed to object to the sentence at the time it was imposed, he was provided ineffective assistance of counsel. Our review indicates defendant forfeited the ability to challenge his sentence on appeal by not objecting in the trial court when the sentence was imposed, and failed to meet his burden of establishing the failure was due to trial counsel’s ineffective assistance at the time of sentencing. We affirm the judgment. FACTUAL AND PROCEDURAL SUMMARY On November 14, 2019, defendant stipulated that while in Courthouse Park in Madera County on July 23, 2019, he was found with three separate prepackaged plastic bindles containing black tar heroin in his backpack. Defendant admitted he was aware these packages contained heroin and that he intended to sell or distribute it to others. Defendant also stipulated that on November 5, 2019, he was found in a vehicle in Madera County while in possession of multiple packages of methamphetamines. Defendant also admitted he was aware the baggies were present in the vehicle, that he understood the baggies contained methamphetamines, and that he possessed these substances for the purpose of sale or distribution. On July 25, 2019, a complaint was filed charging defendant with unlawful possession of a controlled substance for sale (Health & Saf. Code,1 § 11351, a felony; count 1), and unlawful possession of a device for smoking a controlled substance (§ 11364, subd. (a), a misdemeanor; count 2).2 An additional complaint was filed on

People v. Allen CA5

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