Filed 4/25/17 P. v. Gutowski CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Butte)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL JOSEPH GUTOWSKI,

Defendant and Appellant.
C082525

(Super. Ct. No. CM044062)




Defendant Michael Joseph Gutowski contends the trial court abused its discretion in sentencing him to the upper term for his burglary conviction. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On the morning of January 6, 2016, D. G. awoke to find her apartment had been burglarized. She had fallen asleep the night before at 5:00 p.m. while wearing earplugs. Items stolen included files related to her work, two laptop computers, a television, two purses, credit cards, a driver’s license, keys, and a DVD player.
Later that day, police were dispatched for a possible overdose to defendant’s apartment, which was in the same complex as D. G.’s residence. Defendant did not require medical treatment but did appear to be under the influence of a stimulant. The police officer confiscated a knife on defendant’s belt and, with defendant’s consent, searched defendant and found D. G.’s driver’s license, credit cards, and other identification cards. The officer was aware of the burglary in the apartment complex and obtained the consent of defendant’s wife to enter their apartment. The officer noticed multiple items in the apartment, including laptop computers and a television. Defendant’s wife told the officer that many of the items did not belong to them. She also said defendant had left their apartment at 1:00 a.m. and returned with various items that did not belong to them, including two laptop computers, two televisions, and D. G.’s business cards. The police arrested defendant, and D. G. retrieved her belongings.
In March 2016, defendant pled guilty to first degree burglary with a person present and admitted a prior serious felony. The trial court dismissed, with a waiver, pursuant to People v. Harvey (1979) 25 Cal.3d 754, the remaining counts and allegations, namely receiving stolen property with a value exceeding $950, a prior prison term, and a prior strike.
The probation report recommended the upper term, noting defendant’s “significant prior record of criminal conduct,” including three prior prison terms, a prior conviction for first degree burglary, and parole violations. (Cal. Rules of Court, rule 4.421(b)(2), (3), & (5).) Defendant, who was age 58 at the date of the report, had convictions as an adult in 1976, 1984, 1993, 1994, 1996, 1998, 1999, and 2012. The report also noted the victim was “particularly vulnerable” because she was sleeping in her home at the time of the burglary. (Rule 4.421(a)(3).) The report acknowledged defendant was “remorseful” for his actions and “honest” about his struggles with addiction, including telling the probation officer that he wanted to participate in a residential treatment program. In addition, he had successfully completed his most recent grant of parole.
In written submissions regarding sentencing, defense counsel acknowledged defendant’s prior prison term and “numerous” prior convictions but argued he should receive a mitigated sentence because his criminal past and the current crime were a result of his ongoing addiction problems. (Rules 4.421(b)(2)-(3), 4.423(a)(3)-(4), 4.423(b)(2).) Also, defendant acknowledged wrongdoing and accepted responsibility at an early stage, and had satisfactory performance in “at least one” grant of parole or probation. (Rules 4.421(b)(5), 4.423(b)(3) & (6).) Further, counsel argued the crime was less serious because the property was returned to the victim and defendant did not force entry or damage the victim’s home to gain entry. (Rule 4.423(a)(4) & (6).) Counsel acknowledged during the sentencing hearing that this was not defendant’s “first time around,” but stressed his client wanted to participate in drug treatment. According to counsel, “[t]he ways of younger men are no longer fitted for [defendant], and it’s time for a change.”
The trial court sentenced defendant to 11 years in state prison, as follows: six years (the upper term) for the burglary conviction, plus five years for the prior serious felony. The trial court “reviewed circumstances in aggravation and mitigation” and imposed the upper term since the victim was sleeping and was “particularly vulnerable” at the time of the crime. The trial court acknowledged defendant’s promise to get substance abuse treatment and urged him to “take advantage of whatever treatment” was available in prison. Although defendant had successfully completed his most recent grant of postrelease community supervision, he also had “numerous” prior convictions as an adult, had served three prior prison terms, and had previously performed unsatisfactorily on parole.
DISCUSSION
Defendant contends the trial court erred in imposing the upper term. According to defendant, the trial court should not have considered the sleeping victim as particularly vulnerable because the victim was not awakened, frightened, or harmed during the crime. In addition, defendant’s prior convictions as an adult were not violent or particularly numerous, occurred during a “period of aberrant activity,” and were due to defendant’s substance abuse. Further, defendant argues the trial court should have considered his age, nonviolent history, and willingness to confront his addiction and enter treatment. Given defense counsel’s arguments that defendant should receive a lesser sentence, we reject the People’s contention that defendant forfeited this issue on appeal. Still, we agree with the People that there was no abuse of discretion.
A trial court’s decision to impose the upper term is subject to review for abuse of discretion. (See People v. Sandoval (2007) 41 Cal.4th 825, 847.) A trial court abuses its discretion only if it “relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision.” (Ibid.) An upper term sentence may be based upon “any aggravating circumstance that the court deems significant” or any other circumstance, even if it is not enumerated in rule 4.421, so long as it is “ ‘reasonably related to the decision being made.’ ” (Sandoval, at p. 848, quoting rule 4.408(a).) A single valid factor is enough to justify imposition of an aggravated term. (See People v. Black (2007) 41 Cal.4th 799, 813, overruled on another ground in Cunningham v. California (2007) 549 U.S. 270, 293 [166 L.Ed.2d 856, 871].)
Despite defendant’s contentions, there were many valid factors supporting the upper term, including defendant’s numerous criminal convictions as an adult. In addition, defendant committed the burglary at 1:00 a.m., a time when the victim was likely to be present and sleeping, leaving her particularly vulnerable because she could not watch out for threatened danger, defend herself, or call for help. (See People v. Loudermilk (1987) 195 Cal.App.3d 996, 1007 [with respect to rule 4.421(a)(3), “ ‘[v]ulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant’s criminal act’ ”].) With respect to defendant’s arguments that he deserved mitigation due to his substance abuse, the trial court said it based its decision on “everything” that had been presented. Accordingly, the trial court implicitly weighted all the potentially aggravating and mitigating circumstances, including defendant’s age, history of substance abuse, and desire to seek treatment. We find no error.
DISPOSITION
The judgment is affirmed.



/s/
Robie, J.



We concur:



/s/
Blease, Acting P. J.



/s/
Duarte, J.