Filed 6/21/17 P. v. Bowman 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Yuba)
----




THE PEOPLE,

Plaintiff and Respondent,

v.

JEREMY ADAM BOWMAN,

Defendant and Appellant.
C083191

(Super. Ct. No. CRF16-1035)






Pursuant to a negotiated disposition, defendant Jeremy Adam Bowman pleaded no contest to driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2) and admitted a prior strike for robbery. As part of the plea agreement, defendant entered into a Cruz waiver, meaning that if he failed to appear for sentencing the trial court could sentence him to an increased term. It was agreed that defendant would remain free from custody pending sentencing and, if he appeared for sentencing as scheduled, the strike admission would be stricken. Defendant complied with the Cruz waiver and the trial court sentenced him to the upper term of three years in state prison.
On appeal, defendant contends the trial court erred in imposing the upper term because it failed to consider his drug addiction and intoxication as a mitigating factor. Anticipating that his claim may have been forfeited, defendant alternatively argues that defense counsel rendered ineffective assistance. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are taken from the plea hearing and the probation report, which defendant agreed provided the factual basis for his no contest plea.
Around 11:11 p.m. on July 16, 2016, a Marysville police officer observed defendant riding his motorcycle 70 miles per hour in a 30-mile-per-hour zone. The officer, who was in uniform and driving a distinctively marked Marysville Police Department patrol vehicle, attempted to conduct a traffic stop. The officer activated his overhead lights and siren but defendant did not stop. Instead, he fled. A high-speed pursuit ensued, which involved multiple patrol vehicles.
During the pursuit, defendant rode his motorcycle in a very dangerous manner throughout downtown Marysville. He rode at speeds up to 90 miles per hour and ran two red lights and two stop signs, causing at least one vehicle to “force a stop.” Eventually, defendant crashed his motorcycle and fled on foot. He was later found behind a trash container. The pursuit lasted two minutes and spanned almost two miles.
Defendant was charged by complaint with driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer. (§ 2800.2.) It was also alleged that defendant had a prior violent felony conviction within the meaning of Penal Code section 667.5, subdivision (c).
Pursuant to a negotiated disposition, defendant agreed to enter an “open” plea of no contest to the evading offense and admit that his prior violent felony conviction for robbery was a strike within the meaning of the three strikes law. In exchange for his plea and admission, it was agreed that three other cases would be dismissed and probation in two other cases would be terminated. It was also agreed that defendant would give a 60-day Cruz waiver and that, if he appeared for sentencing, his strike prior would be stricken. Thus, under the terms of the agreement, defendant was subject to a maximum term of three years in state prison if he appeared at sentencing. However, if he failed to appear, he was subject to a maximum sentence of six years in prison.
At the entry of plea hearing, defendant entered a no contest plea to the evading offense and admitted the strike prior. The trial court accepted the plea agreement, including the Cruz waiver, and released defendant on his own recognizance pending sentencing.
Prior to sentencing, a probation report was prepared. The probation officer recommended an upper term sentence of three years. As circumstances in aggravation, the report stated that defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)), defendant had served a prior prison term (id., rule 4.421(b)(3)), defendant was on probation when the crime was committed (id., rule 4.421(b)(4)), and defendant’s prior performance on probation was unsatisfactory (id., rule 4.421(b)(5)). As to mitigation, the report stated that defendant voluntarily acknowledged wrongdoing at an early stage of the criminal process. (Id., rule 4.423(b)(3).) In recommending the upper term, the probation report reasoned that the instant offense was no less serious than defendant’s prior felony convictions, defendant placed people in danger by evading law enforcement and excessively speeding through a residential area and near a hospital, defendant had violated the law multiple times since 2014, and defendant was on probation in multiple cases when he committed the offense. While the probation report acknowledged that defendant was addicted to methamphetamine, it noted that defendant indicated he was not under the influence at the time of the offense. Defendant reported to the probation officer that he was “ ‘coming down’ ” from methamphetamine at the time of the offense. The probation report concluded that there was no connection between defendant’s behavior and his addiction.
At sentencing, defense counsel requested probation with a residential rehabilitation program or, in the alternative, the low term of 16 months. In support of his request, defense counsel argued that defendant accepted responsibility early and expressed regret for his actions. In addition, defense counsel noted that defendant has a long history of drug addiction, which he argued was “probably . . . partially at play . . . if not for anything else but mistrust of law enforcement.” Defense counsel also noted that most of defendant’s prior convictions are drug related, defendant’s last felony conviction was in 2009, and defendant was willing to waive all of his custody credits “to get a shot at a program and residential rehab.”
The prosecutor requested an upper term sentence, stating that he agreed with the probation officer’s analysis. In arguing that this is clearly an upper term case, the prosecutor specifically noted that defendant has multiple felony convictions and his conduct was particularly egregious in that he drove at speeds up to 90 miles per hour in downtown Marysville.
The trial court struck defendant’s admission of a strike prior and sentenced him to the upper term of three years. In selecting the upper term, the trial court found that defendant’s conduct was “on the more serious side” for an evading offense. The trial court also identified several additional factors in aggravation: defendant had sustained five prior felony convictions, had served one prior prison term, and was on probation in three cases when the offense was committed. The court found that defendant’s acceptance of responsibility was a mitigating factor, but concluded that an upper term sentence was warranted based on the overall gravity of the offense and defendant’s significant criminal history.
Defendant filed a timely notice of appeal.
DISCUSSION
1.0 Sentencing Error
Defendant contends the trial court erred in imposing the upper term because it failed to consider his drug addiction and intoxication as a mitigating factor. We conclude that defendant has forfeited his claim. But even if defendant had not forfeited his claim, we would conclude that it lacks merit.
When making sentencing decisions, trial courts have wide discretion in weighing aggravating and mitigating factors. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) Aggravating factors are factors that make a crime “distinctively worse than the ordinary.” (People v. Moreno (1982) 128 Cal.App.3d 103, 110.) A single valid aggravating factor justifies the upper term. (People v. Black (2007) 41 Cal.4th 799, 815.) The court may rely on any aggravating circumstances reasonably related to its sentencing decision (People v. Sandoval (2007) 41 Cal.4th 825, 848) and need not explain its reasons for rejecting alleged mitigating circumstances (Avalos, supra, 47 Cal.App.4th at p. 1583). “ ‘The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.’ ” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
Preliminarily, because defendant did not object to the trial court’s findings regarding aggravating and mitigating circumstances, his claim of sentencing error is forfeited. (People v. Scott (1994) 9 Cal.4th 331, 353.) But even if defendant had not forfeited his claim, we find no abuse of discretion. In sentencing defendant to the upper term, the trial court relied on numerous aggravating factors. Defendant’s opening brief offers no arguments as to any of these factors. Since a single valid aggravating factor justifies the upper term (People v. Black, supra, 41 Cal.4th at p. 815), the trial court’s sentencing decision was within its discretion if the record supports any of the factors. Having reviewed the record, we conclude that it supports each of the aggravating factors relied on by the trial court. Accordingly, the trial court did not err in selecting the upper term.
As to defendant’s contention that the trial judge failed to consider his drug addiction and intoxication as a mitigating factor, there is nothing in the record to support defendant’s speculation. We note that a trial court has no obligation to make an express statement of reasons as to why it deemed a proffered factor in mitigation insignificant. Unless the record affirmatively indicates to the contrary, a trial court is presumed to have considered all relevant criteria, including any mitigating factors. (People v. Zamora (1991) 230 Cal.App.3d 1627, 1637.) At sentencing, defendant cited his long history of drug addiction in support of his request for probation or, in the alternative, the low term. Further, the record discloses that the trial court read and considered the probation report, which detailed defendant’s substance abuse history, including his use of methamphetamine. The probation report observed that defendant was addicted to methamphetamine and reported he was “ ‘coming down’ ” from methamphetamine at the time of the offense. The report, however, concluded that there was no connection between defendant’s behavior and his addiction to methamphetamine. Defendant has failed to cite anything in the record that would undermine the presumption that the trial court considered defendant’s substance abuse problem, but was not persuaded that it should be treated as a mitigating factor under the circumstances of this case. (See People v. Weaver (2007) 149 Cal.App.4th 1301, 1317-1318, overruled on another ground in People v. Cook (2015) 60 Cal.4th 922.)
2.0 Ineffective Assistance of Counsel
Anticipating that his claim of sentencing error may have been forfeited, defendant alternatively argues that he received ineffective assistance of counsel. We disagree.
To establish ineffective assistance of counsel, a defendant must demonstrate that his counsel’s performance was deficient and that defendant suffered prejudice as a result. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) Counsel’s performance was deficient if his or her representation “ ‘fell below an objective standard of reasonableness . . . under prevailing professional norms.’ ” (Id. at p. 216.) To show prejudice, defendant must show a reasonable probability that he would have received a more favorable result had counsel’s performance not been deficient. (Id. at pp. 217-218.) “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” (Id. at p. 218.)
Defendant’s ineffective assistance claim is predicated on trial counsel’s failure to object to the imposition of an upper term sentence on the ground that the trial court had “missed” the issue of his drug addiction and intoxication as mitigating factors. We find no merit in defendant’s claim for several reasons.
First, defendant cites no case law supporting the conclusion that voluntary intoxication is a factor in mitigation. Moreover, even assuming voluntary intoxication may be properly considered as a factor in mitigation, there was no evidence that he was intoxicated. The probation report indicates that defendant was not under the influence of methamphetamine at the time he committed the offense, and no contrary evidence was presented at sentencing.
Second, defendant’s substance abuse problem does not qualify as a mitigating factor under the facts of this case. While a substance abuse problem may be considered a mental or physical condition reducing culpability for a crime under certain circumstances, where a substance abuse problem is out of control, the defendant uses his substance abuse habit as an excuse or explanation for continued criminal conduct, and the defendant shows little incentive or ability to change, the substance abuse habit does not “ ‘significantly reduce’ his culpability for the crime, nor does it make the criminal conduct ‘partially excusable.’ ” (People v. Reyes (1987) 195 Cal.App.3d 957, 963-964.) “[D]rug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1511.) Here, there was no evidence that defendant’s drug addiction diminished his responsibility for the evading offense in any way. The probation report indicated that defendant has a long history of abusing drugs and numerous drug-related convictions. The report also indicated that defendant’s attempts at rehabilitation have been unsuccessful, and that he continued to use methamphetamine after committing the offense.
Third, and finally, as discussed above, the trial court identified numerous factors in aggravation (which defendant does not challenge) and was aware of the factors defendant now contends are mitigating. Thus, it is not reasonably probable defendant would have received a more favorable sentence had counsel objected to the trial court’s sentencing choice.
On this record, we conclude that defendant has failed to show deficient performance or prejudice. Because his drug addiction and purported intoxication were not mitigating factors, counsel was not ineffective for failing to object to the trial court’s sentencing decision. Moreover, defendant suffered no prejudice from counsel’s failure to raise a nonmeritorious objection regarding factors of which the trial court was aware.
DISPOSITION
The judgment is affirmed.



BUTZ , Acting P. J.


We concur:



MURRAY , J.



HOCH , J.