P. v. Penn
Filed 2/28/07 P. v. Penn 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. TYRONE JANONTE PENN, Defendant and Appellant. | D048707 (Super. Ct. No. SCD195586) |
APPEAL from a judgment of the Superior Court of San Diego County, Laura P. Hammes, Judge. Affirmed.
Tyrone Janonte Penn appeals a judgment following his jury conviction of second degree robbery. He contends the trial court abused its discretion by sentencing him to prison instead of granting probation.
FACTUAL AND PROCEDURAL BACKGROUND
On December 13, 2005, Penn, an 18-year-old, and two juvenile accomplices approached a 13-year-old boy. Penn pulled a gold necklace from the victim's neck, and told an accomplice to "get him." One accomplice threw the victim to the ground, and the other took his wallet.
The victim ran to his uncle's house and called 911. Police arrived and the victim accompanied them to search for the perpetrators. The victim observed Penn and his two accomplices not far from the crime scene and the police arrested them.
After a jury convicted Penn of second degree robbery, the court denied his request for probation and sentenced him to prison for the three-year middle term.
DISCUSSION
Penn contends the court abused its discretion by denying his request for probation. He argues probation would facilitate his rehabilitation.
The grant or denial of probation is within the broad discretion of the trial court. (People v. Warner (1978) 20 Cal.3d 678, 683.) The burden is on the party challenging the sentence to show the "court's order . . . is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances." (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825.
The general objectives of sentencing include society's protection, punishment, deterrence, prevention, restitution and uniformity in sentencing. (Cal. Rules of Court, rule 4.410.)[1] In sentencing, a court must consider relevant criteria (Rule 4.409), including facts relating to the crime--the nature, seriousness, circumstances, use of a weapon, vulnerability of the victim, whether the defendant was an active or passive participant, provocation, level of criminal sophistication, and whether the defendant took advantage of a position of trust. (Rule 4.414.) It must also consider facts relating to the defendant, including the defendant's prior record, prior performance on probation, willingness and ability to comply with terms of probation, the likely effect of imprisonment, whether the defendant is remorseful, and the likelihood defendant will be a danger to others. (Rule 4.414.) In deciding whether to grant or deny probation, a court may consider additional criteria not listed in the rules, provided those criteria are reasonably related to that decision. (Rule 4.408(a).) A court is generally required to state its reasons for denying probation, but is deemed to have considered all relevant criteria unless the record affirmatively shows otherwise. (Rules 4.406(b)(2); 4.409.)
Here, the court stated its reasons for denying Penn probation, which included many of the rule criteria. As aggravating factors, the court described Penn's extensive prior record, and noted the regularity and frequency of his crimes.[2] The court also determined Penn could pose a danger to the public if granted probation. Further, his prior performance on probation was unsatisfactory and his young victim was vulnerable. Conversely, the court weighed mitigating factors, including Penn's age and past medical and psychological problems.
Although the court did not expressly address some of the mitigating factors noted in Penn's appellate brief, such as his willingness to comply with terms of probation and his remorse, we presume the court considered these factors as well. Penn does not contend the court considered improper factors, only that it abused its discretion in weighing them.
Penn contends the denial of probation was arbitrary and capricious because he will not have the opportunity for psychotherapy, counseling and anger management therapy in prison. Although California prisons may not be a model for rehabilitative incarceration, they do have many programs designed to address inmates' medical, psychological, and developmental needs. In fact, the court recommended the Right Turn Program at R.J. Donovan prison. This innovative program provides counseling and teaches decision-making skills to inmates with substance abuse problems.[3] Even if an opening in the Right Turn Program is not available to Penn, a variety of programs are available to inmates in California prisons, including medical care, psychological counseling, and vocational and academic training.[4] Although we share Penn's concern that incarceration may not be the best method for rehabilitation, we disagree with his conclusion that proper therapy is unavailable in prison.
Penn further contends it is an abuse of discretion to place "this small in stature, deeply-troubled young individual in state prison with institutionalized and hardened criminals, essentially to teach him a lesson." This assertion has no basis because one of the general objectives in sentencing is to punish and "[e]ncourag[e] the defendant to lead a law-abiding life in the future and [deter] him . . . from future offenses." (Rule 4.410(3).)
We conclude the court balanced the proper criteria and did not abuse its discretion by denying Penn probation.
DISPOSITION
The judgment is affirmed.
McDONALD, J.
WE CONCUR:
NARES, Acting P. J.
IRION, J.
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[1] All rule references are to the California Rules of Court.
[2] The probation report included numerous juvenile court true findings of criminal offenses and arrests extending from 2002 to the present offense. In 2005 Penn was tried as an adult and pleaded guilty to assault with force likely to cause great bodily injury. He was on probation at the time of the current offense.
[3] Michael L. Prendergast et al., Amity Prison-Based Therapeutic Community: 5-Year Outcomes, The Prison Journal, Vol. 84 No. 1, March 2004 36-60.
[4] See generally California Department of Corrections and Rehabilitation, Facilities
