Filed 4/3/17 P. v. Atkins CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
RYAN R. ATKINS,
Defendant and Appellant.


A147216

(Lake County
Super. Ct. Nos. CR937618,
CR940634)


Defendant Ryan R. Atkins appeals from the imposition of an aggregate sentence of three years and eight months in state prison for the felony offenses of stalking (Pen. Code, § 646.9, subd. (a) ) (Case No. CR937618), and stalking with a prior felony stalking conviction (§ 646.9, subds. (a), (c)(2)) (Case No. CR940634), which offenses were committed against the same victim. He contends the trial court abused its discretion in denying his requests to reinstate probation in case number CR937618 and grant probation in case number CR940634. We affirm.
FACTS
A. Background
1. Case Number CR937618
On December 11, 2014, the Lake County District Attorney filed a criminal complaint against defendant, charging him with the felony offenses of stalking (§ 646.9, subd. (a)), and making criminal threats (§ 422), and the misdemeanor offense of battery against cohabitant or spouse (§ 243, subd. (e)(1)), based on offenses committed on November 30, 2014 and December 11, 2014, against the victim, defendant’s estranged girlfriend. The charges were based, in pertinent part, on the victim’s report of ongoing threats from defendant, who sent several threatening text messages. Defendant also appeared at both residences where the victim lived.
On June 1, 2015, following defendant’s plea of no contest to the felony offense of stalking, the court dismissed the remaining counts, imposed a probationary term of two years, and issued a protective order in favor of the victim. At the time of sentencing the defendant was present and accepted the terms and conditions of probation. Thereafter on August 11, 2015, a probation department officer reviewed the terms and conditions of probation with defendant. Defendant signed and dated a form acknowledging his understanding and agreement to the terms and conditions.
On October 5, 2015, the probation department sought to revoke defendant’s probation on the ground he violated the court’s protective order issued in favor of the victim. The trial court issued a violation of probation order and, pursuant to a bench warrant, defendant was arrested on October 17, 2015.
2. Case Number CR940634
On November 10, 2015, the Lake County District Attorney filed an information against defendant, charging him with the felony offenses of stalking in violation of a court order (§ 646.9, subds. (a), (b)), and stalking with a prior felony stalking conviction (§ 646.9, subds. (a), (c)), committed against the victim. The charges were based, in pertinent part, on the victim’s report that between September 21, and 26, 2015, defendant sent four emails to her and two emails to her brother. The messages contained information, personal in nature, and indicated defendant was watching the victim while she was outside her residence and watching the victim at night while she slept with her current boyfriend in her residence.
B. Combined Trial Proceedings
On December 11, 2015, at a combined proceeding to resolve both cases, defendant admitted violating probation by failing to obey all laws (Case No. CR937618). He also pleaded no contest to the felony offense of stalking with a prior felony stalking conviction, and the court dismissed the remaining stalking offense (Case No. CR940634). In return for defendant’s admission and plea, the court agreed to impose an aggregate term of three years and eight months, consisting of a term of three years (the middle term) for the felony stalking offense (Case No. CR940634), plus a consecutive term of eight months (one-third the middle term) for the felony stalking offense (Case No. CR937618). It was further agreed there was no statutory limitation on defendant requesting reinstatement to probation in case number CR937618 and probation in case number CR940634.
Before sentencing, the trial court received a report from the probation department recommending that the court “permanently revoke” defendant’s probation in case number CR937618, deny probation in case number CR940634, and sentence defendant to a term in state prison. While acknowledging the 40-year-old defendant was “statutorily eligible” for probation, the probation department officer concluded defendant “would be a poor candidate for probation,” based on a review of the California Rules of Court rule 4.414 criteria affecting probation: (1) the nature, seriousness, and circumstances of the crime was as serious as other instances of the same crime; (2) defendant was an active participant; (3) the manner in which the crime was carried out demonstrated planning; (4) defendant’s prior convictions were numerous and increasing in seriousness; (5) defendant’s prior performance on felony probation was poor as he was on felony probation at the time of the most recent stalking offense; (6) defendant’s ability to comply with reasonable terms of probation was poor; (7) defendant did not appear to be remorseful; and (8) the likelihood defendant would be a danger to others if not imprisoned was moderate. The probation department officer noted defendant claimed a willingness to comply with the terms of probation and the likely effect of imprisonment on defendant would be substantial. As to defendant’s risk of reoffending, a risk assessment using the “Strong Assessment Tool,” indicated defendant was at “a high risk of reoffending by committing additional crimes in the future.”
During the probation background interview, defendant stated, “What I did to [the stalking victim] was wrong, but I do not deserve to go to prison. I didn’t do anything, I am not a violent person.” The probation department report also included a letter from defendant in which he described his circumstances and the reasons why he believed he should be reinstated to probation. The probation department officer also reported on defendant’s criminal history, which consisted of: (1) 1999 Florida juvenile conviction for misdemeanor battery for which he was sentenced to county jail; (2) 2007 California adult conviction for misdemeanor trespass for which he was sentenced to a three-year probationary term; and (3) 2007 California adult conviction for misdemeanor trespass for which he was sentenced to 10 days in jail.
At sentencing on January 4, 2016, the trial court indicated it had read and considered the probation department report and letters from defendant’s college advisor, defendant’s aunt, and the victim’s brother, the latter advocating for the court to place defendant on probation. Additionally, the court listened to defendant’s in-court statement, as well as arguments by defense counsel and the trial prosecutor.
In rejecting defendant’s requests for reinstatement to probation in case number CR937618 and probation in case number CR940634, the court explained its ruling as follows: “So he was here in June and I gave him probation. And three months later, he did it again. And now he’s asking for me to give him probation again. Actions speak a lot louder than words. He knew full well that he was looking at prison the first time around. That was a potential result.” The court further noted it had “listened to everybody extremely patiently. I listened to everything everybody had to say. . . .¶ . . .¶ Last time I made a decision to give him probation. I’m not going to make that same mistake again [as defendant] demonstrated [his] inability to comply with probation . . . .” In considering the “criteria for probation” as set forth in the California Rules of Court, the court found: “[T]he nature, seriousness, and circumstances of the crime are as serious as other instances of the same crime. I think they’re worse because he redid the same thing three months after he said he wouldn’t do it again. He was an active participant. The manner in which he carried out the crime indicates planning. This wasn’t spur of the moment. This was thought through, and he decided to do these things all over again. [¶] His prior convictions are numerous and of increasing seriousness. These aren’t in isolation. He has a prior history, and he does have a prior conviction for a crime of violence. . . . I have to assume at some point he might revert to that. And I gave him a chance. I gave him time served. And [he] goes out and does the exact same thing all over again. His prior performance on felony probation was extremely poor. He was on felony probation at the time of [the] offense. So probation will not be granted again. It's permanently revoked in case CR 937618 and denied in case CR 940634.” The trial court then gave its reasons for imposing the promised aggregate sentence of three years and eight months in state prison.
DISCUSSION
Defendant contends he is entitled to a reversal and remand for resentencing because the trial court abused its discretion in denying his request for reinstatement to probation in case number CR937618 and probation in case number CR940634. However, we conclude defendant is not entitled to any relief as he has failed to demonstrate either prejudicial error or an abuse of discretion such that it is reasonably probable that a more favorable sentence would be imposed if we reversed and remanded for resentence. (People v. Osband (1996) 13 Cal.4th 622, 728.)
Assuming without deciding that defendant preserved for appellate review the objections he now raises, “ ‘[t]he grant or denial of probation is within the trial court’s discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion.’ ” (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311 (Weaver), disapproved on other grounds in People v. Cook (2015) 60 Cal.4th 922, 939.) “ ‘Our function is to determine whether the trial court’s order [denying] . . . probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.’ ” (Weaver, supra, at p. 1311.) Concededly, rule 4.414 enumerates certain criteria to be considered by the trial court in deciding whether to grant or deny probation. Nonetheless, a trial court may also consider other criteria that is “reasonably related” to the court’s decision. (Rule 4.408(a).) And, it is well settled that a trial court may deny probation based on a single aggravating factor. (See People v. Black (2007) 41 Cal.4th 799, 817 [“[u]nder established authority, the same fact may be used both to deny probation and to support imposition of an upper term sentence”]; People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12 [accord].)
Defendant contends the trial court made improper use of certain criteria enumerated in rule 4.414 (nature, seriousness, and circumstances of the crime; active participant; and planning showing criminal sophistication or professionalism), and one factor (prior convictions were numerous and of increasing seriousness) was not supported by the record. However, the court’s decision to deny probation was not based solely on the criteria now challenged by defendant. Rather, the court considered and relied on other independent criteria, supported by substantial evidence: defendant’s prior performance and present status on probation (Rule 4.414(b)(2)) and defendant’s failure to demonstrate his “ability to comply with reasonable terms of probation . . .” (Rule 4.414(b)(4)). The court’s failure to mention certain criteria enumerated in rule 4.414 does not mean the court ignored those factors, as defendant suggests. In the absence of any evidence to the contrary, we presume the court’s failure to mention certain criteria “simply indicates that the court did not consider” those criteria “to have appreciable mitigating weight.” (People v. Samayoa (1997) 15 Cal.4th 795, 860.) “[T]he trial court need not articulate its reasons for rejecting factors which would support the grant of probation. [Citations]” (People v. Kronemyer (1987) 189 Cal.App.3d 314, 366, disapproved on another ground in People v. Whitmer (2014) 59 Cal.4th 733, 741-742.) We therefore uphold the court’s rulings as defendant has failed to demonstrate either prejudicial error or an abuse of discretion.
DISPOSITION
The judgment is affirmed.


_________________________
Jenkins, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Pollak, J.




People v. Ryan R. Atkins, A147216