P. v. Stevenson

Filed 2/15/07  P. v. Stevenson CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San Diego County, K. Michael Kirkman, Judge.  Affirmed.

            Gary A. Stevenson pleaded guilty to the attempted carjacking of Michelle Johnson's vehicle in violation of Penal Code^[1] sections 664 and 215, subdivision (a), which provide in part that any person who attempts to take a motor vehicle in the possession of another from her presence by means of force or fear with the intent to deprive her of its possession is guilty of a felony. The court denied Stevenson's request for probation and sentenced him to the midterm of two years six months in state prison.

            Stevenson appeals, contending the court abused its discretion when it denied his request for probation.  We reject this contention and affirm the judgment.

FACTUAL BACKGROUND^[2]

            In August 2005, Johnson watched her daughter play volleyball, during daylight hours, from the driver's seat of her car.  Johnson had left open both the driver's side door and the back passenger door of her car.

            Stevenson approached Johnson's car, reached inside and tried to grab her car keys.  Stevenson told Johnson to give him her keys and that he was " serious."   Stevenson then grabbed at Johnson's shirt and tried to pull her from the car.  Johnson was afraid but did not get out of the car because she mistakenly thought that her eight-year-old son was in the backseat and did not want Stevenson to take him. 

            Johnson responded by honking her car horn and screaming for help.  After she did so, Stevenson " trott[ed]" away from the car but was grabbed and held by the daughter's volleyball coach until police arrived.  A policeman who had responded stated that although Stevenson smelled of alcohol he was not so intoxicated that he could not stand or take care of himself.

DISCUSSION

            Stevenson contends the court abused its discretion by denying his request for probation over the probation officer's recommendation when numerous mitigating factors supported a grant of probation.  Specifically, he contends that (1) based on the totality of the circumstances the court abused its discretion when it denied probation, and (2) the court's initial misclassification of attempted carjacking as a violent felony when it calculated presentence credits indicates the court " may not have understood the bounds of its discretion and thereby abused it."   We reject these contentions.

            A.  Background

            At sentencing, the court denied Stevenson's request for probation over the recommendation of the probation officer, who had recommended Stevenson be put on formal probation and serve 365 days in local custody.  The court, guided by California Rules of Court,^[3] rule 4.414, explicitly found three aggravating factors and one mitigating factor.  The aggravating factors were:  (1) Stevenson's crime of attempted carjacking was more aggravated as compared to other instances of the same crime (rule 4.414(a)(1)); (2) Stevenson inflicted emotional injury on Johnson and her son (rule 4.414(a)(4)); and (3) Stevenson was likely to remain a danger to others if not imprisoned (rule 4.414(b)(8)).  The mitigating factor was that Stevenson's remorse was genuine (rule 4.414(b)(7)).

            B.  Legal Principles

            A court's decision to deny probation will not be reversed on appeal unless the appellant shows that the court abused its discretion in an arbitrary or capricious manner.  (People v. Kronemyer (1987) 189 Cal.App.3d 314, 364-365 (Kronemyer).)  It is presumed that the court considered relevant criteria regarding sentencing (rule 4.409) and acted to achieve legitimate sentencing goals (People v. Giminez (1975) 14 Cal.3d 68, 72).  Appellants carry a heavy burden in these cases because " [p]robation is an act of clemency that is granted only in the discretion of the judge."   (People v. Read (1990) 221 Cal.App.3d 685, 689.)

            However, the court's discretion is not limitless.  A court's discretion in the grant or denial of probation is guided by statute and rules of court.  Section 1202.7 lists " [t]he safety of the public," " the nature of the offense," " the interests of justice," " the loss to the victim," and the " needs of the defendant" as the primary considerations in such a determination.  Rule 4.414 instructs the court to consider specific facts relating to both the crime and to the defendant when making its decision regarding the appropriateness of probation.^[4] 

            C.  Analysis

            1. Totality of the circumstances

            Stevenson's contention that, based on the totality of the circumstances in this case, the court abused its discretion by denying probation over the probation officer's recommendation when numerous mitigating factors supported a grant of probation, is unavailing.  A court " need not articulate its reasons for rejecting factors which would support the grant of probation."   (Kronemyer, supra, 189 Cal.App.3d at p. 366.)  " 'A trial court may minimize or even entirely disregard mitigating factors without stating its reasons.'  [Citation.]  Further, unless the record affirmatively reflects otherwise, the trial court will be deemed to have considered the relevant criteria, such as mitigating circumstances, enumerated in the sentencing rules.  [Citation.]"   (People v. Zamora (1991) 230 Cal.App.3d 1627, 1637.)

            Here, the probation report recommended probation because the probation officer found various mitigating factors:  (1) Stevenson's remorse was genuine (rule 4.414(b)(7)); (2) he had an insignificant criminal history (rule 4.414(b)(1)); (3) he was willing to comply with the terms of probation (rule 4.414(b)(3)); (4) his crime lacked sophistication (rule 4.414(a)(8)); and (5) he had yet to exhaust local rehabilitative resources or be supervised by a probation officer (rule 4.408(a)).

            The court considered the probation report and its ultimate recommendation, as it was required to do under section 1203, subdivision (b)(3).  However, the probation report and its recommendation were not binding on the court.  (Kronemyer, supra, 189 Cal.App.3d at p. 366.)  As already noted, the court found three aggravating factors supported a denial of probation:  (1) Stevenson's attempted carjacking was aggravated compared to other instances of the same crime; (2) he inflicted emotional injury on the victims; and (3) Stevenson, if not imprisoned, would likely be a danger to others.  The court found as a mitigating factor that Stevenson had shown remorse.  The court balanced the aggravating factors against the factors in mitigation, giving appropriate weight to each, and, in a proper exercise of discretion, decided that the aggravating factors significantly outweighed those in mitigation.  We conclude that, based on the totality of the circumstances in this case, the court did not abuse its discretion when it denied probation.

            2.  Court's misclassification of the offense as a violent felony

            Stevenson's contention that the court's initial misclassification of attempted carjacking as a violent felony led the court to misunderstand the bounds of its discretion is also unavailing.  It is an abuse of discretion to deny probation based in " significant part upon an erroneous impression of the defendant's legal status" (People v. Ruiz (1975) 14 Cal.3d 163, 168) or on " misinformation regarding a material aspect of a defendant's record." (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8).

            Here, the court initially erred in classifying attempted carjacking as a violent felony for the purpose of calculating presentence credits.  Stevenson concedes the court corrected its error, which is not an issue on appeal. 

            Although the court was initially mistaken as to the crime's classification, it nevertheless knew the facts of the case, and the record shows the misclassification did not impact the court's decision to deny probation.  The court did not base its decision in " significant part" (People v. Ruiz, supra, 14 Cal.3d at p. 168) on its misclassification of attempted carjacking as a violent felony as defined under section 667.5, subdivision (c), rather than as a serious felony as defined under section 1192.7, subdivision (c).  Instead, as already discussed, the court explicitly based its denial of probation on three specific rule 4.414 findings.

            First, the court found that Stevenson's attempted carjacking was aggravated compared to other instances of the same crime.  Specifically, Stevenson's attempted carjacking was aggravated by the additional fear felt by a mother who thought her son was going to be kidnapped.

            Second, the court found that Stevenson inflicted emotional injury on the victims.  This finding was not contested by either party.  The probation report stated that Stevenson inflicted emotional injury on both Johnson and her son.  Moreover, Stevenson himself admitted that the family was " probably scarred" by the incident.

            Lastly, the court found that Stevenson, if not imprisoned, would likely be a danger to others.  The mere fact that Stevenson had never been on formal probation was not sufficient to undermine the court's well-founded belief that Stevenson posed a continued threat to the public.  The record, reviewed by the court, showed Stevenson had a long history of alcohol and drug abuse.  Stevenson is 37 years old.  He began drinking alcohol at age 14 and currently consumes alcohol sporadically on " one-week binges."   He has admitted to using marijuana, methamphetamines, cocaine, and heroin.  Also, the record showed that although Stevenson had previously attended a drug treatment program, he still used drugs and admitted to having a " potential" problem with heroin.

            Stevenson was diagnosed as suffering from bipolar disorder and clinical depression, for which he must take medications.  He has been hospitalized over 15 times due to suicide attempts.  In 1999, he was hospitalized for nine months.  The day of the attempted carjacking he was off his medications and was intoxicated.  At sentencing, the prosecution argued that Stevenson's current state of sobriety would not be maintained unless he was in prison.

            The court therefore had adequate foundation for its belief that incarceration would be necessary to prevent a continued threat to the public.  Indeed, the judge stated, " I do believe that the defendant continues to pose a danger to society given the conduct in this case and also given that indeed, if he didn't continue to take his medications, to be monitored closely, that this type of event could happen again. That's not something that I want to risk."   

            After reviewing the record, we conclude that Stevenson failed to meet his burden of showing that the court abused its discretion in an arbitrary or capricious manner when it denied his request for probation.

DISPOSITION

            The judgment is affirmed.

NARES, Acting P. J.

WE CONCUR:

                                   McINTYRE, J.

                                         AARON, J.

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^[1]           All further statutory references are to the Penal Code.

^[2]           As there was no trial, the parties stipulated that the preliminary hearing transcript would provide the factual basis for the guilty plea.

^[3]           All further rule references are to the California Rules of Court.

^[4]           " Facts relating to the crime include:  [¶] (1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; [¶] (2) Whether the defendant was armed with or used a weapon; [¶] (3) The vulnerability of the victim; [¶] (4) Whether the defendant inflicted physical or emotional injury; [¶] (5) The degree of monetary loss to the victim; [¶] (6) Whether the defendant was an active or a passive participant; [¶] (7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur; [¶] (8) Whether the manner in which the crime was carried out demonstrated criminal sophistication or professionalism on the part of the defendant; and [¶] (9) Whether the defendant took advantage of a position of trust or confidence to commit the crime."   (Rule 4.414(a), italics added.)

            " Facts relating to the defendant include:  [¶] (1) Prior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct; [¶] (2) Prior performance on probation or parole and present probation or parole status; [¶] (3) Willingness to comply with the terms of probation; [¶] (4) Ability to comply with reasonable terms of probation as indicated by the defendant's age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors; [¶] (5) The likely effect of imprisonment on the defendant and his or her dependents; [¶] (6) The adverse collateral consequences on the defendant's life resulting from the felony conviction; [¶] (7) Whether the defendant is remorseful; and [¶] (8) The likelihood that if not imprisoned the defendant will be a danger to others."   (Rule 4.414(b), italics added.)