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People v. Calhoun6/25/2002
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
In November 1999, Donald P. Calhoun entered a no contest plea to a charge that he had inflicted corporal injury to a cohabitant. The imposition of sentence was suspended and Calhoun was placed on probation for a period of five years. Probation was summarily revoked in October 2001, and formally revoked after a hearing was held in December. Calhoun was sentenced to state prison for the high term of four years.
He appeals, claiming trial counsel was ineffective because he failed to object when the trial court relied on the circumstances surrounding the violation (rather than the original offense) in selecting the high term sentence. We reject Calhoun's claim of error and affirm the judgment.
DISCUSSION
A.
According to the transcript of the preliminary hearing, Calhoun had lived with Kim Hobbs for about 10 years. They had one child together, and Hobbs had a child from a previous relationship. In September 1999, Calhoun and Hobbs got into a fight about Hobbs's child. Calhoun (who had been drinking) knocked over a table, pulled a picture off a wall, and threw it onto the floor. Hobbs walked out of the room. Calhoun followed her, grabbed her, and pushed her against a closet door.
Hobbs's daughter called the police. Calhoun entered a no contest plea to a felony spousal abuse charge arising out of this incident (case number NA042117), and probation was granted. As conditions of probation, he was required to spend 365 days in county jail, to submit to random alcohol testing, and to attend Alcoholics Anonymous meetings. The sentence imposed in this case was concurrent to a probation violation sentence previously imposed in case number GA034247-02.
B.
In August 2001, Calhoun was arrested and charged with misdemeanor drunk driving (case number 1LL01433). When he was released, he failed to report to his probation officer. At a pre-revocation hearing, the trial court commented that Calhoun had "a tremendous alcohol problem that began when he was in the 6th grade that's continued unabated," and that he had "picked up numerous other charges because of that problem and convictions. If you look at his probation report, he was put on notice because he was given an order by this court to attend Alcohol Anonymous meetings and put on alcohol testing. He has not complied with the conditions, and he is a threat and danger to the public because he's continuing to drink alcohol and drive, as evidenced by the fact that he has a new violation for just that." A supplemental probation report was ordered, and the matter was put over for a formal revocation hearing.
C.
By the time of the revocation hearing, Calhoun had entered a guilty plea in the drunk driving case (to two counts, one a violation of Vehicle Code section 14601.1, driving while his driving privilege was suspended, the other a violation of Vehicle Code section 23152, driving under the influence). As a result, the probation violation was established by proof of Calhoun's plea in the drunk driving case. In defense, Calhoun called his probation officer, who testified that she had not known that the court had ordered Calhoun to attend Alcoholics Anonymous meetings but that he had enrolled after his new drunk driving arrest, that he had completed a 52-week domestic violence program, and that he was performing satisfactorily on pr
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