P. v. Olden

Filed 9/12/07 P. v. Olden CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Eric William Olden appeals from a judgment imposing a two-year sentence following his plea of no contest to a charge of driving or taking a vehicle without the owners consent. Defendants attorney has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, requesting our independent review of the record. Defendant has been advised of his right to file a supplemental brief and has not done so. We find no arguable issue and shall affirm.

Background

The factual background is taken from the presentence report. On August 25, 2006, the Santa Rosa police responded to a report of a possible auto burglary. When the officers arrived at the scene, they saw a Toyota Tundra with two subjects standing next to the drivers side door and . . . rifling through the contents of the vehicle. Another subject, later identified as Eric Olden, was standing next to the gas tank and appeared to be siphoning gas from the vehicle. When confronted, two of the suspects fled. Defendant tried to walk away but was apprehended on scene, at gunpoint. The police observed that the center dash compartment that housed the radio had been completely ripped apart. The radio was removed and was resting on the dashboard. The interior of the drivers side door was also pried open and the speaker removed. In the back seat, parts of the floorboard had been removed and there was a detached speaker lying on the floor. The officer noted there did not appear to [have been] a forced entry into the vehicle, and the steering column appeared intact. [] Officers subsequently examined two vehicles that were parked next to the Toyota Tundra, both of which were registered to Olden, and found several items including a CD changer, a tool box, an iPod, and towing equipment. The items all appeared to have come from the . . . Tundra.

Defendant reportedly told the police that he was on his way home when he observed an acquaintance named Juan and another unknown subject pull into his driveway. Olden reportedly told the subjects that he needed gasoline and they agreed to let him siphon gasoline from their vehicle. . . . Olden explained that he did not know the vehicle was stolen. . . . When asked how the stolen items from the Tundra ended up in his vehicles, he said the other subjects must have put the items there. The owner of the truck was summoned and stated that he had locked his car the night before, and was not aware that it had been stolen until he was contacted by the police. He identified items that were missing from the truck including an Apple iPod, two tool kits, towing equipment, [a] CD changer, a first-aid kit, and various miscellaneous tools. [The victim] positively identified several of his belongings that were recovered from Oldens vehicle.

On August 28, 2006, defendant was charged with one count of taking a vehicle without consent (Veh. Code,  10851, subd. (a)), and two counts of receiving stolen property (Pen. Code,  496d, subd. (a).) It was alleged as to each count that defendant had a prior conviction for taking a vehicle without consent, and separately alleged that he was imprisoned for this prior conviction within five years of the newly charged offenses, invoking Penal Code section 667.5, subdivision (b).

On October 18, 2006, defendant pled no contest to the count of taking a vehicle. He signed a waiver form stating that the maximum punishment he could receive would be three years imprisonment followed by three to four years of parole, and a $10,000 fine in addition to the mandatory restitution fine. He acknowledged that the conviction would subject him to greater penalties in future criminal cases, if any; that he would be required to submit to a blood test and saliva sample; and that he would be subject to a lifetime ban on firearms. Under the terms of the plea, the two counts of receiving stolen property were dismissed, as was the enhancement for a prior prison term.

The presentence report detailed a criminal history dating back to 1998 when defendant pled guilty to misdemeanor being under the influence of narcotics (Health & Saf. Code,  11550, subd. (a).). Subsequent convictions included another conviction for vehicle theft (Pen. Code,  10851, subd. (a)), for which defendant was placed on probation, probation was twice revoked, and ultimately he was sentenced to two years imprisonment. Defendant was released on parole, and violated his parole several times and was returned to custody on at least two occasions for committing new law offenses. He was subject to parole supervision at the time of the instant offense.

The victim indicated that his insurance company covered most of the damages and he will therefore not be requesting restitution. The presentence report noted defendants poor performance on previous grants of probation and abuse of alcohol and drugs, and recommended that he be sentenced to the aggravated term of three years. Defendant filed a sentencing memorandum in which he argued for probation so that he could seek treatment for drug and alcohol abuse.

The trial court reasoned that defendant was on parole at the time that he committed this new offense. And hes had opportunities in the past for probation, several opportunities. And he has not been a good candidate to be on probation or parole in the past. Defendants counsel argued that defendant has an alcohol abuse problem, and thats been the source of his criminality. Other than that . . . [h]e gets [along well] with others. His family is very supportive, and they wanted to see if he could get a fresh start. He wanted the fresh start up in Oregon. And he believes that he could successfully complete probation . . . . The trial court pointed out that defendant had been granted probation seven times on other convictions, and had successfully completed his term of probation only twice.

The trial court denied probation and sentenced defendant to the midterm of two years, with credit for 164 days. The trial court imposed a restitution fine of $600, under Penal Code sections 1202.4 and 1202.45, which was suspended unless defendants parole is revoked. Defendant also was ordered to pay restitution of $7,317.51 to the victim pursuant to section 1202.4.

Defendant timely filed a notice of appeal.

Discussion

When a defendant appeals after a conviction based on a plea of guilty or no contest, our review is limited to postconviction matters. As a general rule, appeals may not be brought by defendants who have pleaded guilty or nolo contendere. [Penal Code section 1237.5] provides the general rule that defendants who have pleaded guilty must obtain a certificate of probable cause before they may bring an appeal. (People v. Hunter (2002) 100 Cal.App.4th 37, 41.)

With regard to the denial of probation, the trial court enjoys broad discretion in making its sentencing choices, and these choices will be affirmed unless there is a clear showing that the trial courts actions were arbitrary or irrational. (People v. Golliver (1990) 219 Cal.App.3d 1612, 1616.) Given defendants poor performance on numerous previous grants of probation, the trial courts decision to deny him another such opportunity was well within the bounds of reason.

The fact that the victim did not seek restitution does not control the trial courts authority to order restitution. Restitution has long been considered a valid condition of probation because of its rehabilitative value. [Citations.] Restitution is seen as a   deterrent to future criminality . . .  and as a tool   to rehabilitate the criminal. . . .  [Citation.] Requiring the defendant to make complete reparation to her victims for the harm done to them is more likely to make an impression on the defendant than simply imposing a statutory fine. [Citation.] [] Furthermore, in 1982, the voters passed Proposition 8 making entitlement to restitution the constitutional right of every crime victim. (Cal. Const., art. I, 28, subd. (b).) (People v. Ortiz (1997) 53 Cal.App.4th 791, 796.) Therefore, that the victims insurance company had reimbursed him for his loss is irrelevant. While a settlement agreement with, and release of, a defendants insurance company may reflect a victims willingness to accept the amount paid in full satisfaction for all civil liability, it does not reflect the willingness of the People to accept that sum in satisfaction of the defendants rehabilitative and deterrent debt to society. A restitution order pursuant to a defendants plea is an agreement between the defendant and the state. [Citation.] The victim is not party to the agreement, and a release by the victim cannot act to release a defendant from his financial debt to the state any more than it could terminate his prison sentence. (People v. Bernal (2002) 101 Cal.App.4th 155, 162.) The victim may be obligated to reimburse the insurance company for some or all of the restitution received from defendant, but that is a matter between the victim and his carrier and does not affect defendants obligation to make the restitution.

Defendant was at all times represented by counsel. We find in the record no issue warranting further briefing or consideration.

Disposition

The judgment is affirmed.

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Pollak, J.

We concur:

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McGuiness, P. J.

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Siggins, J.

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