Opinion
A132203
06-14-2012
THE PEOPLE, Plaintiff and Respondent, v. BERNABE M. RAMIREZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct.
No. SCR-590950)
The trial court found defendant Bernabe M. Ramirez guilty of a felony violation of former Penal Code section 12021, subdivision (e), that is, unlawful possession of a firearm by a person who has been adjudged a ward of the juvenile court based on commission of a specified offense. Initially, the court suspended imposition of sentence and granted defendant formal probation. After defendant later admitted an alleged probation violation, the court revoked probation and imposed an upper term determinate sentence of three years' state imprisonment.
Further statutory references are to the Penal Code.
Defendant contends the trial court erred in imposing the upper term. We conclude there was no abuse of discretion and affirm.
BACKGROUND
A complaint filed October 4, 2010, charged defendant with a felony violation of former section 12021, subdivision (e), committed five days earlier. As to that count, it was alleged defendant had been adjudged a ward of the juvenile court in January 2008, after that court found he had committed assault in violation of section 245, subdivision (a)(1), and had found true a criminal street gang enhancement under section 186.22, subdivision (b). The complaint also stated another count, charging defendant with a felony violation of section 186.22, subdivision (a) (active participation in criminal street gang).
See now section 29820.
Defendant initially pleaded not guilty. Subsequently, however, he changed his plea to one of no contest, after the trial court granted the prosecutor's motion to reduce the section 186.22 violation to a misdemeanor. Finding defendant guilty, the trial court, on October 25, 2010, suspended imposition of sentence and granted defendant three years' formal probation conditioned on his serving six months in county jail. Noting defendant had been on probation for a misdemeanor offense at the time he committed the offenses to which he had pleaded no contest, the court additionally ruled defendant was in violation of that probation and terminated that probation as unsuccessful.
The trial court similarly granted the prosecutor's motion to strike from the complaint an enhancement allegation under section 186.22, subdivision (b)(1)(A), that had been alleged in connection with the felony violation of former section 12021, subdivision (e).
On February 3, 2011, about seven days after his release from county jail, defendant was arrested after a deputy sheriff found him under the influence of alcohol and wearing a "gang related hat," near the scene of a reported stolen car. The conditions of defendant's probation had required, among other things, that defendant not wear any gang-related clothing and abstain from alcohol. Consequently, the probation officer (PO) filed a request to revoke defendant's probation.
Defendant first denied, then admitted, the alleged probation violation, and on April 7, 2011, the trial court summarily revoked his probation and referred the matter to the PO for a report.
The PO report, under the heading "Juvenile Criminal/Social History," stated defendant had sustained "twelve juvenile adjudications" between September 2006 and October 2009. Four of these adjudications were "for violence such as battery or general fighting." Defendant had been placed at Rites of Passage in Nevada after being found "unsuitable" for any in-state placement, which "seem[ed] to stem from his violent conduct and his involvement in gangs." After his release from this placement, defendant was due for a review to determine whether he had successfully completed his placement. Before the review took place, defendant reportedly threatened his mother "with physical violence if she came to [the] review" and told her there would be "trouble for her" if he were returned to the Rites of Passage placement. Defendant also sustained six violations of his juvenile probation and had been detained in juvenile hall to serve time prior to his release from juvenile probation in October 2009. The PO report listed, as circumstances in aggravation, that "defendant ha[d] a history of violent conduct as outlined in the juvenile history section of [the] report[, his] . . . prior sustained juvenile petitions were numerous[, he] . . . was on misdemeanor probation for a weapons conviction when he committed [the subject] offense[s, and his] . . . prior performance on juvenile probation was unsatisfactory." The PO report concluded with a recommendation that the court not reinstate defendant's probation, but rather impose the upper term prison sentence of three years for defendant's felony violation of former section 12021.
Defendant filed a statement in mitigation in which he objected to the lack of specificity in the PO report's summary of his delinquency proceedings, offered mitigating factors that had not been included in the PO report, and requested either reinstatement of his probation or imposition of the lower term prison sentence for his felony violation.
At the formal revocation hearing on May 20, 2011, the trial court noted it had received, and read in their "entirety," both the PO report and defendant's statement in mitigation. Initially commenting that the PO recommendation appeared to be "a sound one," the court invited defense counsel to argue against imposition of the upper term prison sentence.
Defendant's trial counsel argued that, if the mitigating factors listed in his Statement in Mitigation were balanced against the aggravating factors detailed in the PO report, the court "could very reasonably find it more appropriate" to impose the midterm, rather than the upper term prison sentence. He also pointed out defendant had only been released from county jail a few days before his arrest, and therefore had not had any meaningful opportunity to receive probation supervision or services. Accordingly, he requested reinstatement of probation or imposition of the midterm prison sentence.
These were essentially that proper treatment of defendant's alcohol abuse might prevent future criminality, defendant had grown up in a home in which he was subjected to his father's domestic violence and threats, and defendant had voluntarily acknowledged wrongdoing at an early an early stage in the proceedings.
When the court asked defendant if he had anything to add, defendant at first said "[n]o." The court asked if he was "certain of that," and defendant then said he understood he had "made a mistake and something [had] . . . to be done about it," but he "personally fe[lt]" that imposition of the upper term prison sentence was "too much for what [he] did." Defendant added that, if the court were to grant reinstatement of his probation, he would get a job to help his child and try his best to comply with the terms of probation. But, since he did not regard reinstatement as "really . . . being possible," defendant asked the court to impose the midterm prison sentence.
At this point the trial court expressed surprise that the defense had "somewhat given up," since the court itself thought there were "other options" than a term in state prison. The court then asked whether defendant's situation was so "hopeless" as to preclude reinstatement to see "how serious" defendant could be if given another chance. The court said it thought defendant understood that his conduct was wrong, both with respect to his initial offenses and his subsequent probation violation, and perceived defendant to be "a pretty articulate and pretty smart individual." The court went on to say "if I'm going to sentence him to state prison, I might as well sentence him to the aggravated term [¶] . . . [but the] question is, do I want him to go to state prison at this point in time for the conduct based upon what I see in the case?" The court thought it was particularly significant defendant had not really been on probation for any "extended period" prior to his arrest for probation violation, and stated it was "not so certain" that it was presently appropriate "to throw in the towel."
In response, the PO said he did not believe defendant was "interested in repairing his behavior," since, even now, he was not seriously seeking reinstatement but rather a midterm sentence. Defense counsel at this point explained defendant, after reading the PO report, had the "impression that probation [was] not particularly interested in working with him and that . . . he might be scrutinized very closely and in danger of being violated immediately upon release." This concern was exacerbated by defendant's awareness that reinstatement "would probably come with a waiver of his credits which are quite substantial." Thus, defendant felt a "straight commitment might be more in his interest."
The PO asserted it was not true that he "might not give [defendant] a fair shake" if the trial court were to reinstate his probation. But, after noting the probation department had supervised defendant as a juvenile for "many, many years," the PO stood by his recommendation for imposition of the upper term prison sentence.
The trial court then said: "Well, the question becomes, Mr. Ramirez, really what you think is best." (Italics added.) "Do I send you to state prison or do you waive some of your credits and go back out on probation? [¶] Would you rather go to state prison?" Defendant asked the court what sentence it would impose if he "did go" to prison, to which the court replied: "[t]hree years." Defendant then asked if he would keep all his credits if he was so sentenced, and the court explained that he would—it would ask for a waiver of half his credits only in the event it reinstated his probation.
The trial court then observed defendant seemed to want "to negotiate," and said "[i]f you're just worried about a few days, then it's not the state prison issue that you're concerned about." Whereas the court was concerned about defendant's future and what he was going to do with it, it felt no need to continue "just negotiating," and advised defendant to consult with his counsel for a moment. After a brief conference, defense counsel stated that defendant was "not inclined to pursue any avenues that would include a waiver of his credits."
The trial court then formally revoked defendant's probation, and ordered his commitment to state prison to the upper term of three years as to the felony violation of former section 12021. The court's stated reasons for imposing the upper term essentially restated the aggravating circumstances listed in the PO report and quoted above. The court calculated defendant's credit for time served as 452 days.
With respect to defendant's misdemeanor violation of section 186.22, the trial court imposed a sentence of six months to run concurrently.
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Defendant's appeal followed. (See § 1237, subd. (a).)
DISCUSSION
Defendant contends the trial court erred in imposing the upper term sentence of three years in state prison. He argues the PO report's summary of his juvenile delinquency proceedings failed to provide specific information as to number, dates, and offenses, with respect to his juvenile adjudications, and it was therefore improper for the trial court to rely on the aggravating circumstances stated in the report, to the effect that these adjudications were "numerous" and demonstrated "a history of violent conduct." Defendant also suggests the trial court failed to consider the mitigating factors he provided in his Statement of Mitigation. The heart of defendant's contention, however, derives from the comments the court made at the revocation hearing. In defendant's view, these indicate that the court believed defendant could safely be reinstated on probation and released from custody if he waived half of his presentence credits. He urges that, if this was the case, "there was no basis for concluding that an upper term [prison sentence] was appropriate," especially in light of the court's "extremely odd observation" that, if it were going to impose a prison sentence, it "might as well sentence [defendant] to the aggravated term."
We review a sentencing decision for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) The trial court must exercise its discretion in a manner not arbitrary and capricious, consistent with the letter and spirit of the law, and based on an individualized consideration of the offense, the offender, and the public interest. The court abuses its discretion when it relies on circumstances that are either not relevant or are otherwise an improper basis for its sentencing decision. (Ibid.)
We see no merit in the suggestion that the trial court failed to consider the mitigating factors offered by defendant. As noted above, the court stated on the record it had received and read defendant's Statement in Mitigation in its entirety. Nor are we persuaded the court relied improperly on the aggravating factors it stated on the record as its reasons for imposing the upper term prison sentence. The PO report provided the number of defendant's juvenile adjudications, the range of dates within which they occurred, and described the offenses with sufficient specificity for the court to find that defendant had "a history of violent conduct" and "numerous" juvenile adjudications. (See People v. Quiles (2009) 177 Cal.App.4th 612, 622 ["the trial court is required to consider the 'number, dates, and offenses' constituting . . . alleged priors"], citing People v. Black (2007) 41 Cal.4th 799, 820.)
The trial court's remarks during the revocation hearing do not, in our view, disclose an arbitrary, capricious, or otherwise improper basis for its sentencing decision. In context, we do not find the remark that the court "might as well" impose the upper term if it imposed a prison sentence to be "extremely odd." It simply reflects the court's conviction that, if it were to impose any prison sentence, the aggravating circumstances justified imposition of the upper term. The court's other remarks indicate, on the other hand, that the court believed—at least at the outset—that defendant understood his conduct was wrongful, and that he was "articulate" and "smart" enough to complete probation successfully if he were motivated to do so. In an effort to determine that motivation, the court gave defendant a clearly defined choice—either avoid state prison by waiving half of his presentence credits and addressing his probation terms seriously, or go to state prison under the upper term sentence with his presentence credits intact. After consulting with his trial counsel, it was defendant who chose the latter option. That the trial court was ultimately disappointed in its initial belief that defendant might be a serious candidate for reinstatement of probation by no means compels the conclusion that it subsequently had no adequate basis for its decision to impose the upper-term prison sentence for defendant's felony violation.
We conclude there was no abuse of discretion in the trial court's sentencing determinations.
DISPOSITION
The judgment is affirmed.
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Banke, J.
We concur:
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Marchiano, P. J.
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Margulies, J.