Filed 5/15/17 P. v. Hobart 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



THE PEOPLE,

Plaintiff and Respondent,

v.

ERIK HOBART,

Defendant and Appellant.
D070172



(Super. Ct. No. SCD263112)

APPEAL from a judgment of the Superior Court of San Diego County, Joseph P. Brannigan, Judge. Affirmed.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury found Erik Hobart guilty of evading a peace officer with reckless driving (Veh. Code, § 2800.2, subd. (a); count 1); unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a); count 2); and vandalism (Pen. Code, § 594, subd. (b)(2)(A); count 3). The trial court denied probation and sentenced Hobart to a total term of two years in prison.
Hobart appeals, contending the trial court abused its discretion and deprived him of due process of law by denying probation. We disagree and affirm the judgment.
II
BACKGROUND
A
When a license plate reader in a highway patrol officer's vehicle alerted the officer a stolen truck had just passed, the officer followed the truck, confirmed it was stolen, and requested assistance from other patrol officers and a law enforcement helicopter. As the officers began pursuing the truck with lights and sirens, the driver, later identified as Hobart, began driving erratically. He entered and exited the freeway multiple times, while continually speeding and ignoring traffic controls. At one point, he almost collided with another motorist.
The officers eventually lost sight of Hobart when he exited the freeway and drove through a residential area. However, the helicopter crew saw Hobart and a passenger abandon the truck and flee on foot. Hobart entered a house, where officers eventually located and arrested him.
B
At the sentencing hearing, the trial court received and considered the probation report, the prosecution's sentencing statement, Hobart's sentencing memorandum, and letters and testimony from Hobart's family and friends. The probation report recommended the court grant probation; however, if the court decided to sentence Hobart to prison, the report suggested the court impose concurrent middle terms of two years each for counts 1 and 2. The prosecution requested the court deny probation and impose an aggregate sentence of two years and eight months. Hobart requested probation.
After hearing counsel's arguments, the trial court declined to grant probation, finding Hobart had not shown remorse or accepted responsibility for his actions and had not demonstrated a willingness to tolerate law enforcement supervision. Instead, the trial court accepted the probation report's suggestion to sentence Hobart to concurrent middle terms of two years each for counts 1 and 2.
III
DISCUSSION
The trial court enjoys broad discretion in matters involving probation and sentencing, and the party challenging a decision to grant or deny probation bears the burden of establishing the court abused its discretion. (People v. Catalan (2014) 228 Cal.App.4th 173, 179.) " 'In reviewing [a trial court's determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court's order … is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.' " (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311 (Weaver), disapproved on another ground in People v. Cook (2015) 60 Cal.4th 922, 934–935.)
California Rules of Court, rule 4.414 provides guidance and factors in determining when probation is appropriate. These factors fall into two categories: factors related to the defendant's crime and factors related to the defendant. (Rule 4.414.) A trial court may also consider criteria not listed in the rules provided the criteria are reasonably related to the court's decision. (Rule 4.408(a).) A judge is assumed to have considered all relevant factors, unless the record affirmatively reflects otherwise. (Rule 4.409.)
A trial court is required to state its reasons for denying probation and imposing a prison sentence. (Rules 4.406(b)(2); 4.408(a).) Generally, a court satisfies this obligation when it explains why it favored imprisonment over probation. (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1157–1158.) On appeal, a trial court is only found to abuse its discretion if there is not sufficient or substantial evidence to support the trial court's application of the factors. (Weaver, supra, 149 Cal.App.4th at 1313.) Here, Hobart asserts the trial court misapplied three factors: (1) the seriousness of the crime, (2) the significance of his criminal history, and (3) the probation officer's recommendation.
A
Regarding the seriousness of Hobart's crime, the trial court may consider several factors related to the nature of the crime. (Rule 4.414(a).) They include whether the defendant used a weapon, the seriousness and circumstances of the crime, and whether the crime will likely recur. (Ibid.)
Here, Hobart argues the seriousness of his crimes were mitigated because he did not hit anyone, he was unarmed, and he would not have fled from the officers if he knew the truck was stolen and had previously had better experiences with law enforcement. However, as the trial court noted, the fact that Hobart did not hurt anyone did not change the egregiousness of his behavior. He traveled over 100 miles per hour on a busy freeway and over 60 miles per hour in residential areas. Such reckless driving put other drivers, police officers, and the public at serious risk of significant harm. As the trial court further noted, Hobart will have difficulty functioning in society if he runs anytime an officer approaches him or engages in reckless driving anytime an officer pursues him simply because he believes the officer might misuse his or her authority. Since there is substantial evidence to support the trial court's evaluation of the seriousness of Hobart's crime, Hobart's has not established the trial court abused its discretion in applying this factor.
B
Regarding Hobart's criminal history, rule 4.414(b)(1) allows a trial court to consider prior criminal conduct, the frequency of prior crimes, and whether there is a pattern of regular or increasingly serious criminal conduct. Hobart argues this factor is irrelevant in this case since this was his first felony conviction.
However, as the trial court explained, Hobart's five prior criminal convictions, although misdemeanors, collectively show a long history of theft-related behavior. Moreover, Hobart is 43 years old and has engaged in criminal activity for nearly 20 years, so contrary to his assertion below, his crimes can no longer be categorized as "youthful misdirection."
Additionally, Hobart has fled the police multiple times and has failed to appear in court on several different occasions. This history favors denying probation because it indicates Hobart will have difficulty complying with the conditions of probation, including search conditions. As there is sufficient evidence to support the trial court's evaluation of Hobart's criminal history, the trial court did not abuse its discretion in applying this factor.
C
Finally, regarding the probation officer's recommendation, a trial court may use a probation officer's report to determine if probation is appropriate. (Rule 4.411(d).) However, a probation officer's report and recommendations are only advisory and the trial court may exercise its discretion to reject the report in whole or part. (People v. Server (1981) 125 Cal.App.3d 721, 728.)
Here, the probation report recommended probation, primarily because Hobart had not had a prior felony conviction. Nonetheless, the probation report described Hobart's conduct as "dangerous" and as "put[ting] the community and police at great risk." In addition, the probation report noted that, although Hobart had the ability to comply with the terms of probation, he "did not present … [a] willing[ness] to tolerate law enforcement supervision which does not bode well for a grant of probation." The trial court agreed with this assessment, finding Hobart had not accepted responsibility for his conduct in this case, had failed to remain law abiding while on probation, and had failed to appear in court several times.
As there is sufficient evidence to support the trial court's decision not to follow the probation report's recommendation of probation, Hobart has not established the trial court abused its discretion in applying this factor. Further, since Hobart has not established the trial court abused its discretion in applying any of the challenged factors, he has not established the court abused its discretion and deprived him of due process by denying him probation.
IV
DISPOSITION
The judgment is affirmed.


MCCONNELL, P. J.

WE CONCUR:



HUFFMAN, J.



NARES, J.