Filed 5/23/18 P. v. Miller 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

HENRY MILLER,

Defendant and Appellant.
D072352



(Super. Ct. No. SCD266276)

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

Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meredith White and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Henry Miller pleaded guilty to one felony count and admitted the allegations that he had suffered four prior serious or violent felony convictions and had served two prior prison terms. The trial court sentenced Miller to a prison term of seven years—the upper term of three years (for the current felony conviction), doubled (for the serious or violent felony conviction priors), plus an additional year (for the first prison prior).
On appeal, Miller argues that the court abused its discretion in sentencing him to the upper term on the current felony conviction. We disagree and will affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2016, shortly before 4:00 p.m., in a residential neighborhood of San Diego with a posted speed limit of 25 miles an hour, two police officers in a marked police patrol car chased a vehicle driven by Miller with a passenger in the front seat. The pursuit lasted 17 minutes.
At first, Miller was driving at a speed of over 40 miles an hour. At one point, after Miller crossed the double yellow lines and was driving on the wrong side of the street into oncoming traffic, the officer turned on the patrol car's forward-facing flashing red emergency lights. In response, Miller threw a vial out of the driver's window and made a U-turn, heading toward the patrol car. The police officer then turned on the patrol car's sirens, made a U-turn, and continued chasing Miller.
The pursuit continued through streets and alleys of the residential neighborhood at speeds that reached between 40 and 60 miles an hour. Miller drove—without stopping—through all of the stop signs and at least two red stop lights. During this portion of the chase, the passenger threw a vial out of the passenger's window, and Miller threw a white powdery substance out of the driver's side window.
Meanwhile, in attempt to stop Miller, additional police support placed two sets of spike strips across different streets in the neighborhood. Although Miller successfully maneuvered around them both, he eventually came to a stop—at which time, other police officers who had been called in to assist arrested Miller and his passenger. Miller told the arresting officers that he failed to stop because he had thrown drugs out of the car window. A search of the vehicle revealed two syringes containing suspected PCP in the center console.
During this 17-minute pursuit, Miller violated at least five sections of the Vehicle Code: excessive speed, crossing the double yellow line and driving on the wrong side of the street, making a U-turn, running stop signs, and running red lights.
In February 2017, Miller pleaded guilty to one count of evading a police officer with reckless driving (Veh. Code, § 2800.2, subd. (a)) and admitted the allegations that he had suffered four prior serious or violent felony convictions (i.e., strikes) (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, 668) and served two prior prison terms (§§ 667.5, subd. (b), 668). As the factual basis for the plea, Miller admitted that he "willfully fail[ed] to yield to a police officer in a uniform driving a marked vehicle with lights and sirens while committing 3 separate traffic one-point infractions and having prior strike and prison commit [sic] offenses."
In preparation for the sentencing hearing, the probation department provided an initial report in March 2017. However, it was incomplete; Miller had failed to appear for the interview, because he had been arrested for new charges. At the originally scheduled hearing, the court continued the matter (at the request of the probation department in order to conduct the required interview) and remanded Miller without bail. Following the interview with Miller, the probation department prepared and submitted a May 2017 supplemental report.
The People submitted a sentencing brief, and Miller submitted two sentencing statements, one of which contained five letters of support from members of his community and family.
In May 2017, the trial court sentenced Miller to a term of seven years in prison. Ruling that the circumstances in aggravation "overwhelmingly . . . strike the balance in favor of the upper aggravated term," the court sentenced Miller as follows: three years on the felony conviction (the upper term), doubled because of the prior strikes, plus one additional year due to one of the prison priors. Miller timely appeals from the judgment.
II.
DISCUSSION
Miller contends that the trial court erred in imposing the upper term when sentencing him on the felony violation for evading a police officer with reckless driving (Veh. Code, § 2800.2, subd. (a)). As we explain, because at least one legally sufficient aggravating factor was established, the court did not abuse its discretion in imposing the upper term of three years.
A. Law
Under the determinate sentencing law, the trial court is responsible for fixing the sentence. (§ 1170, subd. (a)(3).) The sentencing judge must select the upper, middle, or lower term on each count for which the defendant has been convicted. (Rule 4.420(a); see § 1170, subd. (a)(3).) The court must specify not only the term of the sentence, but also the reason(s) for the court's choice of the specified term. (§ 1170, subd. (b); rule 4.406(a) [reasons must be stated orally on the record], (b)(4).) The court may not use a fact that is an element of the crime to justify imposing the upper term. (Rule 4.420(d).)
In determining which term of imprisonment to apply, the court is guided by statutory policy statements, standards in the sentencing rules of the Judicial Council, the facts and circumstances of the case, and any additional criteria reasonably related to the decision if the court states such criteria on the record. (See, e.g., rules 4.420 [selection of term], 4.421 [circumstances in aggravation], 4.423 [circumstances in mitigation], 4.408(a) [additional criteria].) Significantly, "a single factor in aggravation suffices to support an upper term." (People v. Osband (1996) 13 Cal.4th 622, 730 (Osband); accord People v. Black (2007) 41 Cal.4th 799, 812 (Black) [appellate court will affirm an upper term sentence, "as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established"].)
An extensive list of aggravating factors is set forth in rule 4.421. However, "[n]either section 1170 nor the California Rules of Court attempt to provide an inclusive list of aggravating circumstances. Thus, a trial court is free to base an upper term sentence upon any aggravating circumstance that (1) the court deems significant and (2) is reasonably related to the decision being made." (People v. Moberly (2009) 176 Cal.App.4th 1191, 1196.)
"[T]he choice of the appropriate term shall rest within the sound discretion of the court. . . . The court shall select the term which, in the court's discretion, best serves the interests of justice." (§ 1170, subd. (b); see rule 4.405(4) [court has "broad discretion" in imposing one of the three authorized terms]; People v. Sandoval (2007) 41 Cal.4th 825, 848 (Sandoval).) In selecting the appropriate term, "the court may consider the record in the case, the probation officer's report, other reports, . . . and statements in aggravation or mitigation submitted by the prosecution [and] the defendant, . . . and any further evidence introduced at the sentencing hearing." (§ 1170, subd. (b).)
Accordingly, we review the court's decision in selecting the upper term for an abuse of discretion. (Sandoval, supra, 41 Cal.4th at p. 847.) "The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.' " (Ibid.) A sentencing court abuses its "broad discretion" if it "relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision." (Ibid.)
B. Analysis
In the present case, at the sentencing hearing, the court heard from both attorneys and Miller himself. During this exchange, the court explained that it had read and considered the probation department's original report, the probation department's supplemental report, the People's sentencing brief (and statement of aggravation), Miller's sentencing statement (with five letters of support and a request for dismissal of a strike prior), Miller's supplemental sentencing statement, and two additional letters on behalf of Miller. The court also viewed a video and audio recording of a portion of the chase in which the police were pursuing Miller through the residential neighborhood. Before ruling, the court expressly acknowledged Miller's explanation of the chase.
During and following input from counsel and Miller, the trial court gave an extensive explanation of why it was selecting the upper term (italics added):
"Mr. Miller certainly has made and continues to make bad decisions. . . . [H]e apparently has not been very successful in . . . learning from [his prior] bad mistakes."
"I think it's important to note that [Miller] did not show up for his probation interview."
The court received confirmation from the probation officer that, once he did show up for his interview, Miller "was less than forthcoming with [the probation department] . . . based on not only what he said, but his manner and his demeanor . . . [during] the interview."
While out on bail awaiting sentencing, "[Miller] picked up new charges."
"[T]here's no mitigation and there's overwhelming aggravation . . . . [¶] . . . [¶] He has nine felony convictions and [this is] his 16th overall felony . . . . [¶] . . . [¶] I just think that it's, again, an exercise of poor judgment on his part and, unfortunately, with his history in the case, his poor judgment . . . leads him to be engaged in continued criminality and put other people at risk, and he's going to have to pay the price, so to speak, for that contingent of poor judgment . . . ."
"I think the circumstances in aggravation are overwhelmingly to strike the balance in favor of the upper aggravated term. That's three years, which will be doubled because of the effect of the strikes. To that will be added one year consecutively for the prison prior, which is not also the subject of the strikes, for total of seven years. [¶] . . . [¶] I've exercised the discretion I have, I think, in an appropriate fashion . . . ."
The court's statement of reasons is well-supported by evidence from acceptable sources. (See § 1170, subd. (b) [in exercising its discretion, the court may consider the record in the case, the probation officer's report, other reports, statements in aggravation submitted by the prosecution, and evidence at the sentencing hearing].) For example, the probation report expressly identified the following aggravating factors: "The defendant's prior convictions as an adult are numerous. The Instant Offense marks his 9th felony conviction and 16th overall" (see rule 4.421(b)(2)); "The defendant was on parole when the Instant Offense was committed" (see rule 4.421(b)(4)); and "The defendant's prior performance on probation and parole was unsatisfactory" (see rule 4.421(b)(5)). In addition, the report provides: "The defendant's refusal to take responsibility for his actions in the Instant Offense is of great concern. It appears he was far less than forthcoming during the probation interview. Further, he continued to use PCP even after his change of plea and while still on parole supervision. [¶] . . . Despite five grants of probation and three commitments to state prison involving five cases, he continued a similar pattern of behavior in the Instant Offense." (See rule 4.421(b)(2), (b)(4), (b)(5).)
Well-aware of its sentencing discretion, the trial court's imposition of the upper term is supported by several legitimate aggravating circumstances—any one of which is sufficient to support an upper term (Black, supra, 41 Cal.4th at p. 812; Osband, supra, 13 Cal.4th at p. 730—many of which the court stated as reasons for the ruling.
Despite the foregoing, Miller argues that the court erred on two grounds: (1) the court relied on an element of the offense as an aggravating factor; and (2) the court misunderstood the nature and extent of its discretion. In support, Miller relies on language in Sandoval, supra, 41 Cal.4th 825, which concludes that a sentencing court abuses its discretion when it (1) considers an element of the offense in selecting the upper term, and (2) misunderstands the nature and extent of its discretion. (Id. at pp. 847-848.) Neither argument is persuasive given the record in this case.
Initially, even if the record supported Miller's arguments (and it does not, as we explain, post), because the trial court relied on several aggravating circumstances, Miller's challenge to one such circumstance does not require a remand for resentencing. (See People v. Martinez (1980) 106 Cal.App.3d 524, 537.) Any such error here is "harmless beyond a reasonable doubt," since, as in Martinez, the court selected the upper term based on "a multitude of aggravating facts coupled with the complete absence of any countervailing or mitigating facts." (Ibid.)
In any event, the record does not support Miller's first argument that the trial court considered an element of the offense—namely, " 'willful or wanton disregard for the safety of persons or property' " (quoting Veh. Code, § 2800.2, subd. (b))—in selecting the upper term. In Miller's prehearing sentencing statement, defense counsel argued: "This was a slow speed failure to yield pursuit. . . . He was not causing damage or harm to persons or property." At the hearing, the court merely disagreed with counsel's argument that the incident involved a low speed chase with no damage or harm, stating: "I've read your sentencing presentation more than once, but I think this case is much more serious than it's represented to be. Low speed chase, you know, minor—rather minor? I don't agree. I think this was incredibly dangerous. It was a high speed chase at some time. If he was going 60 miles an hour, . . . he put an incredible number of people at risk." Toward the end of the hearing, defense counsel repeated her contention that "[t]his is not [a] high speed [chase]"; and the court repeated its comment that "it is high speed, in my view." Very simply, the court's comments were in response to a fact-based argument raised by Miller; there is no indication that the court based its exercise of sentencing discretion on these comments. To the contrary, in explaining its reasons, the court emphasized the aggravating factors and did not mention any facts that could be considered elements of the felony offense.
Similarly, we disagree with Miller's suggestion that the court's comments indicated the court's misunderstanding of the nature and extent of its discretion. Miller first argues that the court "failed to both recognize and exercise the discretion it had to impose a midterm sentence." This argument ignores the court's express statement that "no case could be made in favor of granting of probation. . . . There's no—no possible way I could find a mitigated term or lower term. So the only real choice I have [i]s between midterm and upper term." (Italics added.) Notably, the court acknowledged its discretion to impose a midterm sentence after explaining that it had read and considered everything submitted and after denying Miller's Romero motion to strike one of the prior serious or violent felony convictions.
Miller next argues that the court failed to exercise discretion when it stated that " 'if there's no mitigation and there's overwhelming aggravation, if that adds up to whatever it adds up to, then [Miller's] quarrel's with the law.' " Miller's argument fails to take into consideration the context in which the statement was made. The court had just confirmed with the prosecutor that there were no circumstances of mitigation, commenting on the "rather overwhelming circumstances in aggravation." The court then explained that, in exercising its discretion, it did not look at the total sentence, but rather only at the factors applicable to each component of the sentence:
"THE COURT: . . . I have to operate within the structure of the law and the intent of the law. And if the numbers add up to—they add up to whatever they add up to. I don't have any number in my mind, it's got to be eight years or 10 years or 12 years or whatever; I just think I have to reasonably and rationally apply the sentencing rules and guideline.
"[DEFENSE COUNSEL]: I under- —
"THE COURT: If there's no mitigation and there's overwhelming aggravation, if that adds up to whatever it adds up to, then his quarrel's with the law. I think I could consider striking the one additional year for the prison priors, which are also strikes.[ ] I have done that with some regularity. But beyond that, I think that is stretching it. I think that's giving him the benefit of every doubt here." (Italics added.)
Very simply, the court's comments about what "the numbers add up to" did not refer to an abandonment of the court's responsibility to exercise its discretion. The court's comments refer to the sum of the terms of imprisonment for the instant felony violation (three years), the enhancement for the strike priors (another three years), and the enhancement for the prison prior (another year): 3 + 3 + 1 = 7.
For the foregoing reasons, the trial court did not abuse its discretion in sentencing Miller to the upper limit of three years for his felony conviction of violating Vehicle Code section 2800.2, subdivision (a). The record on appeal establishes that the court exercised its discretion as required—namely, "in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.' " (Sandoval, supra, 41 Cal.4th at p. 847.)
DISPOSITION
The judgment is affirmed.


IRION, J.

WE CONCUR:




BENKE, Acting P. J.




DATO, J.