P. v. Ransom

Filed 6/4/07 P. v. Ransom 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

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Defendant DeMarcus Antwon Ransom pled no contest to grand theft (Pen. Code, 487, subd. (c)).^[1] He was placed on probation, which he subsequently violated on three separate occasions, the last of which resulted in revocation of probation and imposition of the midterm sentence of two years in state prison.

On appeal, defendant contends the court abused its discretion in revoking probation and imposing the midterm prison sentence. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant and two other men walked into a tire shop, took a wheel rim and walked out without paying for it. When the store clerk followed them out into the parking lot, one of the thieves confronted him, saying, What the Fuck you think your [sic] gonna do. When the clerk demanded the rim back, the thief hit him once in the nose. As the clerk tried to retrieve the rim, he was struck again in the right ear. Defendant and his two accomplices fled the scene, but defendant was later apprehended and charged with second degree robbery, a felony, in violation of section 211.

On January 25, 2005, pursuant to a negotiated plea agreement, defendant pled no contest to grand theft ( 487, subd. (c)). The court suspended imposition of judgment and sentence, and placed him on five years of formal probation pursuant to specified terms and conditions, including that he obey all laws, not associate with gang members and serve 90 days in county jail.

On April 25, 2005, defendant admitted violating probation by being in a place frequented by gang members. The remaining two allegations-possession of marijuana and associating with known gang members-were dismissed. The court reinstated probation and ordered that defendant serve an additional 60 days in county jail.

In July 2005, defendant admitted a second violation of probation. The court again reinstated probation contingent upon the terms and conditions previously imposed, along with a condition that defendant serve an additional 60 days in jail. Defendant was further ordered to either qualify for the Sheriffs work project program or surrender himself by August 19, 2005.

According to Sheriffs Department records, defendant never contacted the Department to arrange for work project. As a result, a bench warrant was issued for his arrest on August 23, 2005.

On August 26, 2005, defendant was arrested at his home.

A search of the residence revealed approximately nine grams of marijuana secreted in the bathroom toilet.

On September 2, 2005, probation filed a petition alleging defendant violated probation by possessing marijuana for sale (Count I), failing to participate in work project (Count II) and associating with known gang members (Count III).

Following a hearing, the court sustained Count I (as to possession only) and Count II, but made no finding as to Count III. After considering a supplemental probation report, the court revoked defendants probation and sentenced him to two years in state prison, minus presentence custody credits.

Defendant filed a timely notice of appeal.

DISCUSSION

With scant authority, defendant contends the trial court abused its discretion in finding a violation of probation and imposing sentence because (1) the court exaggerated the severity of the underlying offense, (2) the acts constituting a violation of probation did not constitute substantial criminal conduct, and (3) the court did not articulate on the record the fact that it understood it had a choice to sentence defendant to either jail or prison.

We review a trial courts decision to revoke probation for abuse of discretion. (People v. Self (1991) 233 Cal.App.3d 414, 417; People v. Angus (1980) 114 Cal.App.3d 973, 987-988.)

Defendant first argues that abuse of the trial courts discretion is demonstrated by the courts characterization of the underlying offense as pretty serious and its comment that defendant could well have been convicted of a [section] 211 [charge]. In disputing that opinion, defendant concedes that California law permits a charge for shoplifting to be elevated to the more serious offense of robbery when the perpetrator assaults the store clerk during commission of the crime, but argues that California law is at odds, with a majority of the jurisdictions in the United States on that issue. Defendant concludes that the courts comment demonstrates a lack of perspective and an arbitrary and punitive attitude toward the defendant, particularly when, in defendants opinion, the item stolen had minimal value, the clerk took no action until the suspect had left the store, and the injuries the clerk sustained trying to retrieve the stolen wheel were only minor. Other than what amounts to a difference of opinion, defendant cites no authority for the proposition that the courts comments constitute an abuse of discretion. His contention therefore requires no further discussion. (People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4 [an argument is forfeited if it is raised in a perfunctory fashion without any supporting analysis and authority].)

Defendants contention that the acts found to constitute a violation of probation do not amount to substantial criminal conduct is similarly lacking in authority or substance, and we reject that contention on the same grounds.

Finally, we are not persuaded by defendants contention that the court failed to make a conscious sentencing choice. Defendant first argues that, although the offense of grand theft is a wobbler (i.e., one that a court may sentence in its discretion either as a felony or a misdemeanor), the court failed to articulate on the record the fact that it had a choice in sentencing. Once again, defendant cites no authority, and we have found none compelling the court to do so.

Defendant further suggests that the court had only a limited grasp of the facts relating to the offense. In that regard, defendant takes issue with the courts reference to felony probation and the fact that, when reciting from memory the facts of the case, the court mistakenly remembered the store clerk having been knocked down, a fact not found in the police report. We find neither issue to be of any consequence.

When defendant pled no contest to grand theft, he did so in exchange for no immediate state prison and placement on probation. Pursuant to that negotiated agreement, he was placed on formal probation for five years. The fact that the trial court referred to that as felony probation is of no moment given that the ultimate sentence imposed--two years--was squarely within the discretionary range set forth in section 18 (cases punishable by imprisonment in state prison) as applied to section 489, subdivision (b).

Notwithstanding the minor error regarding the clerk being knocked down, the courts memory of the details of the offense was, in our estimation, sufficiently accurate. Indeed, in recollecting the facts of the underlying offense, the court told counsel, this is from memory so tell me if Im wrong on this. Defendant neither objected nor corrected the court on that point. In any event, whether the clerk was knocked down or not is of little if any importance. It was undisputed that one of the accomplices struck the store clerk, a fact which elevated the seriousness of the offense in and of itself.

We conclude the court did not abuse its discretion in revoking defendants probation or imposing the two-year prison sentence.

DISPOSITION

The judgment is affirmed.

BLEASE , Acting P.J.

We concur:

RAYE , J.

MORRISON , J.

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^[1]All further undesignated section references are to the Penal Code unless otherwise indicated.