P. v. Chiono CA6

Filed 4/16/13 P. v. Chiono CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H037816 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS102433)

v.

WYONA ANTIONETTE CHIOINO,

Defendant and Appellant.

Defendant Wyona Antionette Chioino pleaded no contest to possession of cocaine base for sale. She negotiated the plea on condition that the trial court place her on felony probation. The trial court suspended imposition of sentence and placed defendant on probation with conditions. It later revoked probation and sentenced defendant to an upper term of five years. On appeal, defendant contends that (1) the trial court abused its discretion in revoking probation and imposing sentence, and (2) she received ineffective assistance of counsel because counsel failed to object to the stated grounds for imposing an upper term. We affirm the judgment. FACTUAL BACKGROUND On October 26, 2010, the Seaside Police Department conducted surveillance at America‟s Best Value Inn Seaside South Motel (motel), after receiving information regarding drug sales. The surveillance revealed that defendant and her boyfriend, William Jennings Hill, were selling drugs out of the motel. A lawful search warrant was obtained and the officers arrested defendant and Hill in their motel room. Defendant was

in possession of approximately 1.5 grams of cocaine base. On the way to the police department, defendant further confided that she was hiding cocaine rocks inside her brassiere. Defendant was charged with possession of a controlled substance, possession of a controlled substance for sale, and conspiracy to commit a felony. The officer‟s summary indicated the following: “That probable cause existed to believe that [defendant] and Hill conspired to sell cocaine base, and possessed cocaine base, for the purpose of sales. The conclusion was based on the following facts: Presence of known drug users coming to [defendant‟s] and Hill‟s room, lack of means to show lawful sources of income, lack of paraphernalia, the presence of three cell phones, incriminating statements that were made during questioning, a lack of drug use paraphernalia, a lack of visible signs of drug use.” At the plea hearing on February 2, 2011, the trial court advised defendant that the maximum penalty that could be imposed was five years in prison, followed by three years on parole. Defendant pleaded no contest in exchange for felony probation and was released on a Cruz1 waiver. At the sentencing hearing on May 11, 2011, the trial court stated the following: “It‟s not often I see a probation officer so adamant about sending someone to prison. And it‟s that--that attitude is never going to go away. It‟s going to stay with this case. So, I‟m going to give you conditions of probation and if you violate them you can expect that attitude to be expressed again, and probably by more than one person in this courtroom. . . . [¶] . . . [¶] . . . I put a note here--in fact, I‟ve put it in a couple of different places. And the note basically says that I informed you today that a violation of probation in all likelihood is going to result in a prison commitment.” The trial court then suspended imposition of sentence and imposed various terms and conditions of 1 People v. Cruz (1988) 44 Cal.3d 1247 (immediate release in exchange for promise to appear for sentencing; failure to appear risks losing the beneficial plea deal).