P. v. Carlton

Filed 7/18/07 P. v. Carlton CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. F. Paul Dickerson, III, Judge. Affirmed.

Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Eric A. Swenson, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Colleen Marie Carlton appeals from a three-year sentence imposed upon the revocation of her probation. She argues her sentence should be reversed because the trial court abused its discretion by disregarding or not properly weighing mitigating facts about the offense and then imposing the middle term despite strong mitigating factors supporting the lower term. She also contends her sentence should be reversed because the trial court relied on a probation report to impose the three-year sentence, but the report contained false and incomplete information.

Factual and procedural history

On September 12, 2001, a jury convicted defendant of second degree robbery in case No. RIF94124 (the robbery case). The conviction was based on a shoplifting incident at Costco and a physical altercation with a Costco security or loss prevention employee outside the store on June 3, 1998. As a result of the conviction, the trial court imposed a sentence of 300 days in custody plus three years of probation subject to a number of conditions. Under the conditions of probation, defendant was required to obey all laws, not possess or use controlled substances unless medically necessary, and not to have any contact with her co-defendant, Scott Colbertson (Colbertson). Defendant appealed the conviction, and we issued an unpublished opinion on March 19, 2003, affirming the judgment despite an instructional error, because we concluded the error was harmless.^[1] (People v. Carlton (March 19, 2003, E030541) [nonpub. opn.] (Opn.).)

Two additional cases are discussed in the parties briefs because they were charged while defendant was on bail and awaiting trial in the Costco robbery case and were therefore factored into the three-year sentence imposed after defendants probation was revoked. First, defendant was charged on March 14, 2000, in case No. PEF004064, with transportation for sale of methamphetamine in violation of Health and Safety Code section 11379, subdivision (a),^[2] possession of methamphetamine in violation of section 11378, and driving with a suspended license in violation of Vehicle Code section 14601.2. Testimony at the preliminary hearing indicated police were dispatched to a residence to investigate reports of illegal drug activity. Based on prior contacts with defendant, police were aware she and Colbertson were occupants of the residence, and they also learned defendant had an outstanding warrant. Shortly thereafter, a police officer who knew defendant from prior contacts saw her driving a vehicle not far from the residence. Police pursued the vehicle and found it abandoned. They eventually detained defendant, as well as another individual who had been in the vehicle and who told police defendant was the driver. Police found sealed packages of methamphetamine in the center console of the vehicle. The packaging and the weight of the methamphetamine indicated it was a bulk amount intended for later distribution and sale in smaller quantities.

Second, defendant was charged on August 8, 2000, in case No. PEF004706, with

possession of methamphetamine for sale in violation of section 11378, possession of methamphetamine in violation of section 11377, subdivision (a), and being under the influence of methamphetamine in violation of section 11550, subdivision (a). Testimony at the preliminary hearing indicated police went to a residence to serve a search warrant on Colbertson. Defendant was also in the residence at the time and appeared to be under the influence. In addition, a roommate told police methamphetamine was being consumed in and sold from the residence. While these two drug-related cases were pending, defendant continued to be released on bail. On December 20, 2000, the two cases were consolidated under case No. PEF004064 (the consolidated drug cases).

Shortly after a jury found her guilty in the Costco robbery case, defendant pled guilty on October 19, 2001, pursuant to a plea bargain to two of the charges in the consolidated drug cases: These two charges were possession of methamphetamine for sale in violation of section 11378, and maintaining a place for selling unlawful drugs in violation of section 11366. All of the other charges in the consolidated drug cases were dismissed, and defendant was sentenced to five years of probation.

Defendant was arrested on April 6, 2004, in San Diego and charged with another drug possession offense, as well as possession of drug paraphernalia (case No. SCN176637), and this new case is what precipitated the revocation of defendants probation. On July 16, 2004, a bench warrant was issued for a violation of probation, and probation was ordered revoked in the robbery case and the consolidated drug cases. Pursuant to an agreed disposition, defendant admitted on November 2, 2005, that she violated the break no laws condition of her probation in the robbery case and in the consolidated drug cases. The agreement provided for a maximum of three years on any prison sentence.

On December 14, 2005, the trial court sentenced defendant to the mid-term of three years in the robbery case to run concurrent with the sentence imposed in the consolidated drug cases. In the consolidated drug cases, the trial court imposed the middle term of two years. In this appeal, defendant challenges only the middle term of three years imposed in the Costco robbery case as a result of the revocation and termination of her probation in that case.

Discussion

1. Mitigating Factors Supporting a Lower Term

Defendant claims the trial court abused its discretion in imposing the middle term because it did not properly weigh several mitigating factors set forth in California Rules of Court, Rule 4.423, subdivision (a), which would have justified the lower term. The trial court concluded none of the mitigating factors set forth in Rule 4.423, subdivision (a), apply under the facts of the case.

A trial courts decision to impose a particular sentence is reviewed for abuse of discretion and will not be disturbed on appeal unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (People v. Carmony (2004) 33 Cal.4th 367, 377.) The trial court is presumed to have acted to achieve legitimate sentencing objectives unless the party attacking the sentence is able to overcome the presumption with a clear showing of abuse. (Id. at pp. 376-377.)

In pertinent part, Penal Code section 1170, subdivision (b), states as follows: When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime . . . . In determining whether there are circumstances that justify imposition of the upper or lower term, the court may consider the record in the case, the probation officers report, other reports . . . , and any further evidence introduced at the sentencing hearing. The court shall set forth on the record the facts and reasons for imposing the upper or lower term. . . .  (Pen. Code, 1170, subd. (b).) When the middle term is imposed, the court is not required to state its reasons on the record. (People v. Keeton (1992) 10 Cal.App.4th 1125, 1131-1132.) Selection of the lower term is justified only if, considering [all the relevant facts], the circumstances in mitigation outweigh the circumstances in aggravation. (Cal. Rules of Court, Rule 4.420, subd. (b).)

Under Rule 4.423, subdivision (a)(2), the trial court may consider it a mitigating factor if [t]he victim was an initiator of, willing participant in, or aggressor or provoker of the incident. (Cal. Rules of Court, Rule 4.423, subd. (a)(2).) According to defendant, Costcos security or loss prevention employee who confronted her outside the store was the aggressor and instigator of the violence that ultimately elevated a petty theft offense to a robbery. Defendant claims the employee, who was dressed in plain clothes, did not appropriately identify himself or his intentions when he approached her, and there was no violence until he grabbed her arm and purse. Because of the employees conduct, defendant asserts she was legally justified in resisting with reasonable force. However, the trial court concluded defendant was an active participant in the event, as well as an initiator to the events that ultimately unfolded as found by the trier of fact.

In the Costco matter, defendant was convicted by a jury with robbery in violation of Penal Code section 211. Penal Code section 211 defines robbery as the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. A security or other store employee is considered to be in constructive possession of the stores property and may therefore be the victim of a robbery even though he is not its owner and not at the moment in immediate control of the stolen property. . . . (People v. Nguyen (2000) 24 Cal.4th 756, 761 quoting Peoplev. Miller (1977) 18 Cal.3d 873.) The crime is essentially a theft with two aggravating factors, that is, a taking (1) from the victims person or immediate presence, and (2) accomplished by the use of force or fear. (Miller v. Superior Court (2004) 115 Cal.App.4th 216, 221.)

A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchants premises. (Pen. Code, 490.5, subd. (f)(1).) In making the detention a merchant . . .  may use a reasonable amount of nondeadly force necessary to protect himself or herself and to prevent escape of the person detained or the loss of tangible or intangible property. (Pen. Code, 490.5, subd. (f)(2).)

In our prior opinion, we summarized the evidence presented by the prosecution in the robbery case as follows: On June 3, 1998, defendant and [Colbertson] were shopping in a Costco store in Temecula. Kim Howard (Howard) was working in the store as a loss prevention agent. Howard saw defendant put a package of Zip drive disks and a carton of cigarettes into her purse. In the checkout line, defendant and Colbertson paid for two items, but did not pay for the Zip drive disks or the cigarettes, and walked out of the store. (Opn. at pp. 2-3.)

Howard and another store employee, Rafael Condis (Condis), followed defendant and Colbertson out of the store. About five feet outside the stores exit door, Howard confronted defendant, identified himself as security or loss prevention, and asked defendant to come back into the store. (Opn. at p. 3.)

Defendant continued walking, and refused to come back into the store. Howard followed her, put his hand on her arm, and then put his hand on her purse. Defendant began screaming for someone to call the police and making a big scene. Colbertson said, be careful of her arm. Shes got a fractured arm, and grabbed defendants purse. Howard and Colbertson fell to the ground, wrestling for defendants purse. (Opn. at p. 3.)

Howard was on top of Colbertson on the ground, when defendant bit Howard two times on his back. Howard swung defendant off, and another store employee retrieved defendants purse. Defendant and Colbertson started walking away fast. Howard tackled and handcuffed defendant, and an off-duty police officer apprehended Colbertson. As Howard was taking defendant back into the store, defendant was falling down and refusing to cooperate, like a child would. (Opn. at p. 3.)

Howard was wearing plain clothes, was not wearing a store name badge, and did not show defendant any identification. However, two store managers, Mike DiMase (DiMase) and Rob Bartlett (Bartlett), were standing five to ten feet away from Howard when Howard confronted defendant, and both were wearing Costco identification badges. Condis was standing immediately beside Howard when he confronted defendant, but it is unclear whether Condis was wearing a store identification badge. (Opn. at p. 4.)

Howard was given tetanus and hepatitis shots for his injuries. The retail value of the Zip drive disks and cigarettes was $108.09. (Opn. at p. 4.)

At trial, defendant testified in her own defense, offered an explanation for having the Zip drive disks and cigarettes in her purse, and even presented testimony by a witness in an attempt to corroborate her explanation that she had a receipt and was attempting to return or exchange the items. (Opn. at p. 4.) Although not wearing anything to support her claim, defendant testified she screamed when the Costco employee grabbed her because she had a fractured arm and had had surgery two weeks earlier to put two steel plates in it. (Opn. at pp. 4-5.) She also testified she thought the Costco employee was an attacker who was trying to rob her, and she was trying to ward him off when she bit him. (Opn. at p. 5.) Defendant denied that Howard ever identified himself to her. (Opn. at p. 5.)

In finding defendant guilty of robbery, the jury necessarily found all of the elements of robbery were present beyond a reasonable doubt. As we concluded in our earlier unpublished opinion in this case, [i]f the jurors believed any part of defendants testimony, specifically, that she intended to exchange the Zip drive disks and cigarettes in her purse, that she had a receipt for the items, or that [the security employee] attacked her and tried to take her purse without identifying himself, they would not have convicted her of robbery. (Opn. at p. 9.)

The facts necessarily found true by the jury also do not support defendants contention she is less culpable for the offense because she was legally justified in resisting the Costco employee with reasonable force. There was ample testimony to establish the security officer appropriately identified himself and asked defendant to return to the store. The jury undoubtedly concluded defendant took merchandise from the store without paying for it, so she knew she had stolen property in her purse when she was approached, and could have just given it back. The jury obviously rejected defendants theory she resisted and bit the Costco employee in self defense. As a result, we agree with the trial courts conclusion that the victims role in the offense was not a mitigating factor to be considered in the trial courts decision to impose the middle term.

Based on Rule 4.423, subdivision (a)(3), defendant also argues the trial court should have considered that: The crime was committed because of an unusual circumstance, such as great provocation, that is unlikely to recur. (Cal. Rules Court, Rule 4.423, subd. (a)(3).) Once again, the jury obviously rejected any theory of provocation. Nor can we conclude being detained immediately outside a store when one is carrying stolen merchandise is the type of unusual circumstance referred to in section 4.423, subdivision (a)(3).

In addition, defendant claims the trial court should not have disregarded the low monetary value of the items taken from Costco, because Rule 4.423, subdivision (a)(6) states a possible mitigating factor is that the amount of money or property taken was deliberately small. (Cal. Rules Court, Rule 4.423, subd. (a)(6).) However, the record supports a conclusion the property taken was not deliberately small. The stolen merchandise had a total retail value of $108.09. (Opn. p. 4.) Defendant did not take a single package of cigarettes or a single Zip drive disk. Rather, the Costco loss prevention employee testified he observed defendant take a carton of cigarettes and a package of Zip drive disks with a retail value of $89.99.

Based on the foregoing, we cannot disagree with the trial courts conclusion none of the mitigating factors listed in Rule 4.423, subdivision (a)(3), of the California Rules of Court apply under the facts and circumstances of this case. The trial courts conclusion is supported by the jurys verdict and the record. We therefore conclude the trial court did not abuse its discretion in reaching this determination.

2. Effect of Inaccuracies in the Probation Report.

Defendant argues she was deprived of a fair opportunity to receive a more lenient sentence because the probation report contained inaccurate and incomplete information and did not include a reasoned analysis of aggravating and mitigating factors. She also complains her counsel was not given enough time to submit written comments to the report or to submit additional information. As a result, she contends the trial court was not in a position to adequately evaluate the sentencing choices in this case.

[P]robation reports tendered to the court for sentencing purposes . . . should not in any way be misleading or inaccurate. (People v. Bloom (1983) 142 Cal.App.3d 310, 320, quoting People v. Lutz (1980) 109 Cal.App.3d 489, 497 (Lutz).) [F]undamental fairness demands that such reports be founded on accurate and reliable information. (People v.Bloom, supra, at p. 320.) If the defendant feels the probation report is insufficient or inaccurate, or is based upon unreliable information, he or she may present witnesses to counteract or correct any portion of the report. (Ibid.) Reversal based on inaccuracies in a probation report is generally unwarranted unless the trial court relied on the information to the defendants prejudice. (People v. Peterson (1973) 9 Cal.3d 717, 726-728.)

The probation officers function is to investigate the circumstances surrounding the crime, to develop the prior history and record of the defendant, and to make recommendations on whether probation should be granted or denied. [Citation.] The purpose of a personal interview with defendant is to assist in developing mitigating factors as well as aggravating ones. (People v. Santana (1982) 134 Cal.App.3d 773, 786.) In preparing a probation report, a probation officer is entitled to interview the defendant, and the defendant may decline the interview. (Lutz, supra, 109 Cal.App.3d at pp. 495-497.)

Defendant argues the probation officers report is inadequate because it does not include a reasoned analysis of aggravating and mitigating factors. She contends she was entitled to a supplemental report based on information current at the time she was sentenced. California Rules of Court, Rule 4.411.5, subdivision (a)(8)(B), does state the report must contain a reasoned discussion of aggravating and mitigating factors affecting the sentence length in the event a prison sentence is recommended or is likely to be imposed. The report recommends a term of three years in state prison. As defendant acknowledges, the report did reference the original probation report filed in 2001. The 2001 report did include a reasoned discussion of relevant factors, and at that time, probation was recommended for a period of three years.

Although referring to the earlier report from 2001, the new probation officers report prepared November 28, 2005, does outline the reasons a prison sentence was recommended. These reasons were based on information current at the time of sentencing, including at least two aggravating factors set forth in California Rules of Court, Rule 4.421, subdivisions (b)(4) and (5). Specifically, the probation officer cited defendants three felonies, a failure to benefit from supervised probation, and the new drug-related offense. Under these circumstances, we cannot conclude the probation officers report was so inadequate that the trial court was unable to make an informed sentencing choice. The robbery incident was committed on June 3, 1998. Thereafter, defendant admitted significant probation violations in two different cases. Defendants arrest once again in San Diego County on April 6, 2004, on another drug-related offense, along with her subsequent guilty plea to attempted possession of a controlled substance, shows there was no progress during this long period of probation. Defendant presents no serious challenge to these circumstances and does not state what, if any, additional mitigating factors should have been included in the probation report other than what we have already rejected.

In the challenged probation report, the probation officer stated defendant did not appear to be remorseful about her actions regarding the original theft and drug charges and she attempted to minimize her culpability by stating she was a victim of circumstances and failed to accept responsibility for her actions. Defendant complains [t]he probation officer cited no basis for this editorial comment. However, our review of the report indicates the basis for the probation officers opinion was an interview of defendant on November 23, 2005, which was conducted a short time before the sentencing hearing on December 14, 2005. If defendant disagreed with the opinion, she was entitled to present rebuttal evidence, and we note she made a statement during the hearing. Because of the facts of the original theft offense, defendant also argues she was justified in her attempts to minimize her culpability. We reject this argument because we have already concluded the jurys verdict did not support defendants version of the relevant events.

At the sentencing hearing, defense counsel advised the court the probation officer did not provide notice sufficient to allow time to provide any mitigating information to be considered in making a recommendation. As a result, defendant argues there was no opportunity for her counsel to submit information prior to the sentencing hearing. Counsels arguments during the sentencing hearing reveal he had read and considered the probation report and had even submitted extensive comments to the probation officer although they were not submitted in time to be included in the report sent to the court. Counsel also presented testimony by defendants daughter seeking mercy on her mothers behalf. Counsel did not request additional time to submit further information or to present additional mitigating evidence. In addition, defendant has not provided anything to even suggest what other information or evidence could have been presented which would have been material to the courts sentencing decision if her counsel had had more time. We therefore conclude there is no basis to establish lack of notice had any effect on defendants sentence.

The probation report did include two items of inaccurate information. First, the report incorrectly referred to defendants robbery conviction as a burglary, second degree. Second, the report inaccurately stated defendant had been sentenced on the new case in San Diego to a 16-month term in state prison for violating 11377(a), a felony. The abstract of judgment in this new San Diego case indicates defendant was actually convicted of attempted possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a).^[3] Defendant complains these inaccuracies gave the impression she had a more serious criminal history. However, there is nothing to even suggest either of these inaccuracies had any effect on the trial courts sentencing decision. Defense counsel made certain the court was aware of these mistakes at the sentencing hearing before the sentence was imposed. In addition, the record demonstrates the court recognized these as errors.

In sum, we conclude the record does not support defendants contention she was prejudiced by an inaccurate and incomplete probation report. The record demonstrates defendant had a fair opportunity to present argument and information relevant to the trial courts sentencing decision. Defendant has presented nothing which was not previously considered and rejected by the trial court at the time of sentencing. The record shows a careful analysis by the trial court, including consideration of established aggravating and mitigating factors. We agree with the trial courts decision there were relevant aggravating factors and no mitigating factors. As a result, we also agree with the trial courts determination that the lower term was not justified because circumstances in mitigation did not outweigh those in aggravation. From the record before us, we can discern no basis for concluding the trial court improperly exercised its discretion.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

McKINSTER

J.

RICHLI

J.

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^[1] In an order filed August 8, 2006, this court took judicial notice of its file in the prior appeal (case No. E030541).

^[2] All further statutory references will be to the Health and Safety Code unless otherwise indicated.

^[3] On July 19, 2006, defendant submitted an application to augment the record and a request for judicial notice. Defendant requested we take judicial notice of the prior appeal of the robbery (case No. E030541) and Exhibit A, a copy of the abstract of judgment in the new case in San Diego (case No. SCN176637). The abstract of judgment is dated August 5, 2005, and states defendant was convicted of attempted possession of a controlled substance in violation of section 11377, subdivision (a), and was sentenced to a term of one year and four months. On August 8, 2006, we reserved consideration of defendants request to take judicial notice of Exhibit A. We may take judicial notice of records of any court of this state. (Cal. Evid. Code, 452, subd. (d)(1).) Ordinarily, we do not take judicial notice of matters not previously presented to the trial court, because our review is based on the trial courts ruling at the time it was made. (People v. Welch (1999) 20 Cal.4th 701, 739-740.) However, we grant defendants request, because the record shows the trial court was aware of the information contained in the abstract of judgment through other sources at the time its sentencing decision was made.