P. v. Castaneda

Filed 4/3/07 P. v. Castaneda CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David J. Danielsen, Judge. Affirmed.

Manuel Villalobos Castaneda appeals imposition of the upper term for possessing methamphetamine for sale in SCD197143. On June 6, 2006, Castaneda entered a negotiated guilty plea to possessing methamphetamine for sale and admitted a prior conviction of transporting a controlled substance in SCD197143. (Health & Saf. Code,  11378, 11370.2, subd. (c).) The court immediately sentenced him to prison for six years: the three-year upper term for possessing methamphetamine for sale with a consecutive three years for the prior drug conviction. It imposed concurrent terms in SCD183097 and in SCD166194, cases in which Castaneda was on probation when he committed the crimes in SCD197143. Castaneda contends the trial court abused its discretion in imposing the upper term in SCD197143.

The court denied a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).)

FACTS

In SCD197143, police officers conducted a search of a residence. A car associated with Castaneda was parked in front of the house. Officers searched the car and found a pound of methamphetamine.

In SCD183097, in 2004 DEA agents had conducted surveillance of a residence after receiving information that Castaneda would possess about a pound of methamphetamine. After Castaneda was seen driving a vehicle in the area of the residence, the car he was driving was searched and officers found 572.79 grams of methamphetamine. Castaneda entered a negotiated guilty plea to transporting methamphetamine. (Health & Saf. Code,  11379, subd. (a).)

In SCD166194, in 2002 Castaneda had admitted to conspiring with others to sell heroin. (Pen. Code,  182, subd. (a)(1); Health & Saf. Code,  11351, 11352.) The court placed him on three years' probation including a condition he obey all laws. In 2004 the court revoked probation but reinstated probation with an extension until 2007. On June 6, 2006, the court revoked probation and sentenced Castaneda to prison for the four-year middle term for conspiracy, to run concurrent with the sentences in SCD183097 and SCD197143.

DISCUSSION

Penal Code section 1170, subdivision (b) provides in part:

"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."

California Rules of Court, rule 4.420(b) provides in part:

"Circumstances in aggravation and mitigation must be established by a preponderance of the evidence. Selection of the upper term is justified only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation."

Determination as to the appropriate term is within the trial court's broad discretion and must be affirmed unless there is a "showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316.) "Sentencing courts have wide discretion in weighing aggravating and mitigating factors [citation], and may balance them against each other in qualitative as well as quantitative terms. [Citation.]" (People v. Roe (1983) 148 Cal.App.3d 112, 119.) One factor alone may warrant imposition of the upper term (People v. Kellett (1982) 134 Cal.App.3d 949, 963) and the trial court need not state reasons for minimizing or disregarding circumstances in mitigation (People v. Salazar (1983) 144 Cal.App.3d 799, 813). "[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.] [I]n the absence of a clear showing that its sentencing decision was arbitrary or irrational" a discretionary determination should not be set aside on review. (People v. Giminez (1975) 14 Cal.3d 68, 72.)

Here, the trial court imposed the upper term on the conviction of possessing methamphetamine for sale because of Castaneda's extensive criminal record. Castaneda argues this was an abuse of discretion because his record does not show an extensive criminal history. However, Casteneda forfeited the right to make this claim on appeal by not objecting in the trial court to the court's exercise of discretion. As the Supreme Court said in People v. Scott (1994) 9 Cal.4th 331, 356, "[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." Castaneda did not object when the trial court stated its reason for imposing the upper term.

As to any claim the imposition of the upper term based on facts determined by the court violates the holding in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]), Castaneda's plea agreement authorized the trial court to "determine the existence or non-existence of any aggravating facts which may be used to increase my sentence on any count or allegation above the middle term . . . ."

DISPOSITION

The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

HUFFMAN, J.

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