P. v. Clark

Filed 6/22/07 P. v. Clark CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.

Chet L. Taylor, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright Ladendorf, and Robert M. Foster, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Brandi Nicole Clark of second degree robbery (Pen. Code 211, all statutory references are to the Penal Code unless otherwise noted) and found true the allegation she used a firearm in the offense ( 12022, subd. (a)(1)). She argues the trial court abused its discretion in sentencing her to prison because it mistakenly believed it could not grant probation. For the reasons stated below, we affirm.

I

Factual And Procedural Background

On December 4, 2002, defendant drove the getaway car used in a robbery of a delivery truck driver in Fullerton.  Defendant later admitted to an investigating officer she suspected the two men riding in the car she drove carried guns. She admitted driving one of the assailants home to retrieve his weapon and she overheard them discuss whether they had something to cover their faces. She returned the perpetrators to her cousins home and she accepted $10 of the robbery loot to buy gas. Police apprehended her as she drove to the gas station.

On June 21, 2006, a jury found defendant guilty of robbery and also found true the allegation defendant was vicariously armed during the offense. The court imposed a low-term sentence of two years for robbery, and added a year for the enhancement.

II

Discussion

Defendant contends the trial court abused its discretion because it mistakenly believed it could not grant defendant probation. The record belies this assertion and demonstrates the trial court correctly understood it had the option of granting probation.

At sentencing, the trial court stated it had read and considered the probation report, which recommended probation. The court expressly referred to and discussed the criteria affecting the decision to grant or deny probation found in California Rules of Court, rule 4.414. These factors included consideration of defendants youth, the likelihood of recidivism, her role as an active or passive participant, and the seriousness of the crime. The court observed the factors affecting whether to grant or deny probation apply to all crimes eligible for probation, [B]ut this offense has specifically been designated a serious felony and a violent felony. And those designations are a statement to the court regarding the seriousness that the Legislature and the electorate views this type of behavior. [] It is so contrary to the behavior which this society is willing to tolerate and it is so contrary to what we expect all residents of this state to conform to. In deciding to reject probation, the court stated none of the factors under rule 4.414 was determinative, and informed defendant yours is a tough case for me to decide. The court would not have made this statement or discussed the factors in rule 4.414 if it believed defendant was statutorily ineligible for probation.

Defendant argues the courts comments acknowledging the statutory designation of robbery as a serious and violent felony demonstrate the court believed it could not grant probation regardless of whether a defendant was not personally armed during its commission. As discussed above, the courts comments clearly demonstrate it understood it could grant probation. The grant or denial of probation is within the trial courts discretion and the defendant bears a burden when attempting to show an abuse of that discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) Defendant has not shown the court abused its discretion.

III

Disposition

The judgment is affirmed.

ARONSON, J.

WE CONCUR:

OLEARY, ACTING P. J.

MOORE, J.

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