P. v. Veillon

Filed 4/18/07 P. v. Veillon 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Shasta)

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On four separate occasions between December 7, 2005, and January 25, 2006, defendant James Veillon sold morphine, cocaine, and rock cocaine to an undercover police officer. During the execution of a search warrant at defendants home, defendant admitted selling the drugs.

With the condition that he serve no more than four years in state prison, defendant pled guilty to four counts of selling a controlled substance. On appeal, he contends the trial court abused its discretion in denying probation and imposing the middle term of four years. He also contends the court erred in failing to recite in detail all of the fines, fees, and penalties imposed. Only the last contention has merit, as the People concede.

DISCUSSION

I

Contrary to defendants claim, the trial court did not abuse its discretion in denying his request for probation. Probation is an act of leniency, not a matter of right. (People v. Birmingham (1990) 217 Cal.App.3d 180, 185.) The court is presumed to have acted to achieve legitimate sentencing objectives; its decision to impose a particular sentence will not be set aside unless defendant meets a heavy burden of establishing that the court exercised its discretion in a capricious or arbitrary manner. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) Defendant fails to meet this heavy burden.

Defendant, whose criminal history spans approximately 10 years, repeatedly failed to comply with terms of a prior grant of probation. The offenses for which he was convicted in this case are serious--he sold significant amounts of illicit drugs to an undercover officer on four separate occasions. And he continued to abuse drugs after his arrest--although three witnesses and defendant testified at the sentencing hearing that he had not used or sold controlled substances since his arrest, defendant used marijuana a few days before meeting with the probation officer who prepared the sentencing report.

The trial court stated that its heart [was] with [defendant], but observed that people with a criminal history often are very good at talking to the court and sounding very sympathetic. In declining to grant probation, the court relied on the seriousness of the present offenses; defendants prior juvenile adjudications and criminal convictions for receiving stolen property, trespass, resisting arrest, and corporal injury on a cohabitant; and his multiple violations of prior grants of probation. The court noted that it could easily justify imposing consecutive sentences on each count, but instead imposed concurrent middle terms of four years, the maximum permitted by the plea agreement.

The courts finding that defendant was not a good candidate for probation was not arbitrary or capricious, i.e., it was not an abuse of discretion.

II

We also reject defendants contention that the trial court abused its discretion in not considering the following mitigating factors: (1) this was defendants first drug-related offense; (2) his addiction to drugs is a physical condition that reduced his culpability; and (3) he acknowledged wrongdoing at an early stage of the proceedings. In his view, these factors warranted the lower term; in other words, he believes the court abused its discretion in sentencing him to the middle term. We disagree.

Generally, determination of the appropriate term is within the trial courts broad discretion [citation] and must be affirmed unless there is a clear showing the sentence choice was arbitrary or irrational [citation]. (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) The court has wide discretion in weighing aggravating and mitigating factors, may balance them against each other in qualitative as well as quantitative terms, and need not state reasons for minimizing or disregarding circumstances in mitigation. (Ibid.) When the middle term is imposed, no additional reasons are required. (Id. at p. 402.) The sentencing judge is deemed to have considered the relevant factors unless the record affirmatively reflects otherwise. (Cal. Rules of Court, rule 4.409.) Here, the record does not reflect otherwise.

Before sentencing defendant, the court considered the probation report and heard statements from defendant, defense witnesses, defense counsel, and the prosecutor. The report and statementsincluded discussions of defendants remorse, his early admission that he sold the narcotics, defendants substance abuse, the nature of his prior convictions, and the facts of the current crimes. Nothing in the record indicates the trial court neglected to consider any mitigating factors, or acted in an arbitrary or irrational manner.

The court properly imposed the middle term.

III

Defendant contends, and the People agree, that the matter must be remanded for further proceedings because the trial court failed to recite in detail all of the fines, fees, and penalties imposed. For example, it ordered defendant to pay a criminal lab fee of $157.50, without any reference to supporting statutory authority. The abstract of judgment reflects that the fee was imposed pursuant to Health and Safety Code section 11372.5, subdivision (a), which authorizes a fee of $50 for each separate violation of sale of a controlled substance (Health & Saf. Code,  11352); but this does not explain how a fee of $157.50 was achieved. The clerks minutes of the sentencing hearing purport to explain the basis for the fee; however, the minutes are not supported by the courts oral pronouncement of sentence.

All fines, fees, and penalties must be stated separately at sentencing, with the statutory basis specified for each; and the abstract of judgment must reflect these matters. (People v. High (2004) 119 Cal.App.4th 1192, 1200.) Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. (Ibid.) Accordingly, the matter must be remanded for the court to rectify its oversight.

DISPOSITION

The judgment is affirmed, except that the matter is remanded to the trial court with directions to separately state all fines, fees, and penalties imposed, with the appropriate statutory basis; amend the abstract of judgment accordingly; and send a certified

copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

SCOTLAND, P.J.

We concur:

SIMS , J.

CANTIL-SAKAUYE , J.

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