Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 203139
RIVERA, J.
Defendant Rashawn Harris appeals from a judgment entered upon his plea of guilty to robbery. (Pen. Code, § 211.) He contends on appeal that the trial court erroneously refused to take his mental retardation into account as a circumstance in mitigation in sentencing him. We affirm.
All statutory references are to the Penal Code. All rule references are to the California Rules of Court.
I. BACKGROUND
Defendant was charged with robbery (§ 211), and pled guilty on March 17, 2008. It appears from the probation report that defendant approached a 14-year-old boy on the street, looked through his belongings, and took a cell phone from him.
On May 7, 2008, the trial court suspended imposition of sentence and placed defendant on three years’ probation. Defense counsel argued at the sentencing hearing that defendant had a disability that did not amount to a legal defense but, “given the evaluation of Golden Gate Regional, ” asked to have the disability added to the presentence report as a circumstance in mitigation. The trial judge, Judge Charlene Padovani Mitchell, denied the request. She noted that rule 4.423(b)(2) listed as one factor in mitigation that a defendant suffered from a mental or physical condition that significantly reduced culpability but stated, “While the reports to this Court indicated that Mr. Harris does have some developmental and emotional issues, I don’t think they rise to the level to what is contemplate[d] by this particular circumstance in mitigation.” She also told defense counsel, “And the Court is taking into consideration the issues that you have raised, Mr. Iverson, in agreeing to this particular sentence and disposition.”
Defendant admitted a probation violation on August 1, 2008, based on his possession of a vehicle master key (§ 466.5), and was reinstated on probation.
The People moved to revoke probation, based on a September 3, 2008, incident in which defendant and another person robbed a man. After a contested hearing, the trial court, Judge Cynthia Ming-Mei Lee presiding, revoked probation and sentenced defendant to the mid-term of three years in state prison.
II. DISCUSSION
Defendant’s sole contention on appeal is that the sentencing court erroneously refused to consider his mental retardation as a circumstance in mitigation.
During a November 2009, probation revocation hearing, defendant presented evidence that his mother had epilepsy and took Phenobarbital and Depakote while she was pregnant with him; that when he was a child, he had “outbreaks” at school in which he would “kind of flip out”; and that as a child he was treated at a mental institution. According to defendant’s brother, he had to be “take[n] by the hand and [told] step by step on what to do, ” and he had developmental disabilities.
A social worker for the public defender’s office testified defendant received services at the Golden Gate Regional Center, which served people with developmental delays. According to the social worker, Golden Gate Regional Center had diagnosed defendant as developmentally disabled, and its records indicated he had a “cognitive disability that closely relates to mental retardation.” However, he had graduated from middle school and high school, and showed no difficulty understanding the social worker during conversations.
Judge Lee acknowledged defendant’s developmental disability, but noted that the presentence report prepared in 2008 had found no circumstances in mitigation or aggravation; and that in response to defendant’s request to have his emotional and developmental issues considered in mitigation, Judge Mitchell found they did not rise to the level of the circumstance in mitigation. Judge Lee allowed defendant to prepare a sentencing memorandum, but indicated she was “disinclined” to consider the factors in mitigation and aggravation for purposes of sentencing because they had been fixed at the original hearing before Judge Mitchell.
Defendant argued in mitigation in his sentencing memorandum that he was borderline mentally retarded, that he had no prior record other than a misdemeanor theft (rule 4.423(b)(1)), that he suffered from a mental condition that significantly reduced his culpability (rule 4.423(b)(2)), and that he had acknowledged wrongdoing at an early stage (rule 4.423(b)(3)); and asked the court to consider a mitigated term. A January 2008 social assessment from the Golden Gate Regional Center reported that defendant had “a history of cognitive delays and severe social-emotional challenges.”
A psychological evaluation prepared in 1999, when defendant was 12 years old, stated that a test had shown defendant’s verbal IQ to be 55, his performance IQ to be 63, and his full scale IQ to be 55, all in the intellectually deficient range (1999 report).
At the sentencing hearing in December 2009, Judge Lee noted that in placing defendant on probation in 2008, Judge Mitchell had been aware of Golden Gate Regional Center’s assessment, and that she had explicitly rejected this disability as a factor in mitigation. (Rule 4.423(b)(2).) Judge Lee concluded that under rule 4.435(b), she could not consider this factor anew. The court found the factors in aggravation and in mitigation did not outweigh each other, and sentenced defendant to the midterm.
Defendant contends Judge Lee erred in refusing to revisit the question of whether his mental disability was a mitigating circumstance when selecting a prison term. Rule 4.435(b) provides that when probation has been revoked and terminated and the sentencing judge commits the defendant to prison, “(1) [i]f the imposition of sentence was previously suspended, the judge must impose judgment and sentence after considering any findings previously made and hearing and determining the matters enumerated in rule 4.433(c). [¶] The length of the sentence must be based on circumstances existing at the time probation was granted, and subsequent events may not be considered in selecting the base term....” (Italics added.)
Rule 4.433(c) provides that if sentence of imprisonment is to be imposed, or if execution of a sentence of imprisonment is to be suspended during probation, the sentencing judge must determine whether to impose one of the three authorized prison terms and state the reasons for imposing that term, determine whether to strike any enhancements, decide if multiple sentences will be consecutive or concurrent, decide any issues raised by prohibitions of dual use of facts and limitations on enhancements, and pronounce judgment and sentence, stating the terms and giving reasons as required by law.
Also relevant to defendant’s argument is rule 4.433(b), which provides that if imposition of sentence is suspended and probation granted after a conviction by trial, the trial court must identify and state the circumstances that would justify imposition of one of the three authorized prison terms. (§ 1170, subd. (b).)
The court in People v. Goldberg (1983) 148 Cal.App.3d 1160 (Goldberg), considered the meaning of rule 4.435(b)(1). There, the trial court suspended imposition of sentence and placed the defendant on probation after he pled guilty to a crime. The probation report had mentioned two circumstances in aggravation and two in mitigation; in explaining its decision to place the defendant on probation, the trial court mentioned both mitigating circumstances. The defendant was later found to have violated probation and was sentenced to the upper term of imprisonment. In imposing this term, the sentencing court mentioned the two aggravating factors, but not the mitigating circumstances that had influenced the court’s original decision to grant probation. (Goldberg, at pp. 11611162.) The Court of Appeal concluded the trial court had erred in failing to consider the favorable findings. Because the defendant had pled guilty rather than being convicted by trial, rule 4.433(b) did not require the court to make such findings. (Goldberg, at pp. 1162 1163, citing People v. McKinzie (1982) 134 Cal.App.3d 1016, 1019-1020.) Nevertheless, concluded the court, “at the time when he suspended imposition of sentence, the trial judge did make specific findings of fact, both in aggravation and in mitigation of the offense to which defendant pleaded guilty. Under these circumstances, we conclude that rule [4.]435(b)(1) of the California Rules of Court requires that such findings be considered by the superior court when sentencing defendant upon revocation of probation. [¶] The language of that rule is broad and inclusive. It contemplates consideration of any findings previously made, whether or not such findings were required.” (Goldberg, supra, 148 Cal.App.3d at p. 1163.) The Court of Appeal remanded to allow the trial court to consider the previous findings in mitigation, because it was questionable whether aggravating circumstances outweighed mitigating circumstances at the time probation was granted. (Ibid.)
We first reject defendant’s argument that Judge Mitchell did not make a finding when she refused his request to add as a factor in mitigation that he suffered from a mental or physical condition that significantly reduced his culpability. The probation report had concluded there were no factors in aggravation or mitigation. The factor defendant sought to add was one of the factors in mitigation established by rule 4.423, which provides guidance to the trial court in selecting the term of imprisonment. (Rule 4.423(b)(2); Advisory Com. com., 23 pt. 1B West’s Ann. Codes, Rules (2006 ed.) foll. rule 4.423(b)(2), p. 292; § 1170, subd. (b).) Bearing in mind the “broad and inclusive” language of rule 4.435(b)(1) (Goldberg, supra, 148 Cal.App.3d at p. 1163), we conclude the trial court’s statement that defendant’s developmental and emotional issues did not rise to the level contemplated by rule 4.423(b)(2) constituted a finding.
As defendant points out, Judge Mitchell was not required to make findings on factors in aggravation and mitigation, because defendant was convicted not by trial, but after a guilty plea. (Rule 4.433(b).) Goldberg establishes, however, that where a court granting probation after a guilty plea does make such findings, the court that later sentences the defendant to prison must consider them. (Goldberg, supra, 148 Cal.App.3d at p. 1163.)
Defendant argues, however, that even if Judge Lee at sentencing was required to consider the previous findings, she was not bound by them but was free to reject them based on her own evaluation. Nothing in rule 4.435(b) directs the sentencing court to consider earlier findings anew or suggests it was appropriate to do so in the circumstances of this case. The language of the rule suggests otherwise, in stating that the length of the sentence must be based on circumstances at the time probation was granted, and that events occurring after that time may not be considered in selecting the base term. (Rule 4.435(b)(1).) As Judge Lee noted in sentencing defendant, Judge Mitchell recognized that the reports from the Golden Gate Regional Center indicated defendant had developmental and emotional issues. Indeed, it appears that Judge Mitchell took those issues into consideration in placing him on probation. Defendant was not relying on information or theories not before the court at the time Judge Mitchell made her finding. (Compare People v. Griffith (1984) 153 Cal.App.3d 796, 801 [on resentencing after revocation of probation, court could properly consider previously undiscovered crime committed by defendant].)
In any case, we see no possibility that defendant suffered prejudice. Judge Lee made clear that she recognized defendant’s mental and emotional disabilities and that she was familiar with both the Golden Gate Regional Center report and the 1999 report; that the Golden Gate Regional Center report did not show defendant’s disabilities to be as severe as appeared in the 1999 report; that defendant knew it was wrong to take others’ property but continued to do so; and that he was a danger to public safety. In the circumstances, we are satisfied that had Judge Lee separately considered defendant’s argument that his disabilities should be considered as a circumstance in mitigation for purposes of sentencing, she would have rejected it.
In light of rule 4.435(b)’s requirement that the sentencing court consider previous findings, we reject defendant’s contention that reversal is required because in failing to reconsider those findings, the trial court deprived him of a fair hearing by failing to exercise a discretion conferred and compelled by law. (See People v. Penoli (1996) 46 Cal.App.4th 298, 306.)
We would reach this conclusion even under the standard for federal constitutional error, which defendant urges us to apply. (Chapman v. California (1967) 386 U.S. 18, 24.)
III. DISPOSITION
The judgment is affirmed.
We concur: REARDON, Acting P.J., SEPULVEDA, J.