P. v. Smith

Filed 9/29/06 P. v. Smith CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

INTRODUCTION

Jeffrey Scott Smith (appellant) contends on appeal that the trial court abused its discretion by imposing an aggravated eight-year prison term for arson of an inhabited structure (Pen. Code, § 451, subd. (b)[1]). Alternatively, he argues that if we find he waived his right to challenge the sentence on appeal, we must conclude he received ineffective assistance of counsel, requiring remand for resentencing.

We affirm. Appellant’s counsel did preserve appellant’s objection to his sentence. However, the sentence imposed was within the court’s discretion.

II.

BACKGROUND

Years of mental health and substance abuse problems culminated in appellant’s August 13, 2003 decision to set fire to a garage next door to the home where his daughter, a minor, lay sleeping. Admittedly “not in [his] right mind,” appellant doused a pile of his personal effects with gasoline and lit it, quickly producing a blaze that was too large for him to extinguish. He then woke up his daughter, allowing her to exit the house. The resulting fire produced an estimated $120,000 in damages to the home and belongings of the victim, who is appellant’s ex-girlfriend and the mother of his daughter.

On March 5, 2004, appellant pled guilty to a single count of arson (§ 451, subd. (b)). At that time he was advised, among other things, that his plea could result in a state prison sentence of up to eight years. The Sonoma County felony presentence report filed with the court on April 29, 2004, recommended that sentence. However, at sentencing in September 2004, the court did not immediately sentence appellant to prison, and instead placed him on probation.

Appellant was found on January 4, 2005, to have violated the terms of his probation, and on February 15, 2005, the court again placed him on probation, this time under modified terms. Once again, it was the recommendation of the probation department that appellant’s probation be revoked and that he be sentenced to the aggravated term of eight years in state prison.

Finally, appellant was found on July 29, 2005, to be in violation of probation for a second time. A third probation report was submitted, once again urging the court to revoke appellant’s probation, and to sentence him to the upper term of eight years in state prison. This time, the court revoked probation, and on September 14, 2005, sentenced appellant to eight years in prison, the upper or aggravated term for a section 451, subdivision (b) conviction.

At sentencing, appellant’s attorney argued that the upper term should not be imposed because “the issues that aggravated have been mitigated.” Acknowledging this argument, the court nevertheless concluded: “I feel I have the ability to order the aggravated term based solely upon [appellant’s] prior criminal history,” which consisted of nine convictions.

On September 21, 2005, the court denied appellant’s motion to reconsider the sentence, noting that “Mr. Smith, when he leaves the program[,] drinks. He’s dangerous. I’m sorry for the family. But Mr. Smith did this.”

III.

DISCUSSION

A. Abuse of Discretion in Imposing the Aggravated Term

Appellant contends the trial court abused its discretion in imposing the aggravated term for his section 451, subdivision (b) conviction. Such abuse occurred, he argues, because “the court accorded undue weight to appellant’s criminal history” and “failed to consider any of the numerous factors in mitigation, including [appellant’s] early acknowledgment of guilt, his remorse, his voluntary restitution . . . and the statements of the victims as to appellant’s extremely impaired mental state at the time of the offense.”

Respondent suggests that appellant’s challenge to his sentence was waived because appellant did not object at sentencing. However, as we have noted, appellant did, in fact, raise this issue at sentencing by arguing that “the issues that aggravated have been mitigated.” Appellant also reasserted the issue of mitigation through the motion to reconsider the sentence and the presentation of testimony from appellant’s daughter and ex-girlfriend at the hearing held on September 21, 2005.

A court imposing the upper term for an offense must make a finding on the record that aggravating factors outweigh mitigating factors to support the imposition of such a sentence. (§ 1170, subds. (b)-(c); Cal. Rules of Court, rule 4.420(b).[2]) However, “[s]entencing courts have wide discretion in weighing aggravating and mitigating factors. [Citation.] Indeed, a trial court may ‘minimize or even entirely disregard mitigating factors without stating its reasons.’ [Citation.]” (People v. Lai (2006) 138 Cal.App.4th 1227, 1258.) “ ‘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.’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) An appellate court will not disturb a discretionary ruling except when there is both “ ‘ “a clear case of abuse“ ‘ “ and “ ‘ “a miscarriage of justice.” ‘ “ (Blank v. Kirwan (1985) 39 Cal.3d 311.)

Appellant suggests that the court wholly ignored certain mitigating factors and gave “undue weight” to his criminal history because the court “sentenced appellant to the upper term ‘based solely upon his prior criminal history.’ [Citation.]” (Italics omitted.) We disagree.

There is nothing in the record to suggest that the trial court was unaware of possible sentencing mitigating factors when it selected the upper term, or that the court ignored such factors. Instead, the record reveals that the court was intimately involved in appellant’s case, including his progress during a probationary period which extended over 18 months.

During that time the court was presented with three separate probation reports, all of which recommended the upper term in state prison after concluding that aggravating factors outweighed mitigating factors. The initial probation report specifically noted that factors in aggravation included the vulnerability of the victim (rule 4.421(a)(3)), the level of planning and sophistication by which the crime was carried out (rule 4.421(b)(8)), appellant’s numerous prior convictions (rule 4.421(b)(2)), and his prior unsatisfactory performance on probation (rule 4.421(b)(5)). The report went on to list possible circumstances in mitigation including appellant’s performance on probation, and his agreement to make restitution to the victim (rule 4.408).

At sentencing, the court stated that it had the ability to impose the upper term based solely upon the prior history. In other words, appellant’s prior convictions, by themselves, provided sufficient aggravation for the court to find that they outweighed any mitigation and therefore justified the upper-term sentence. The court did not suggest, however, that it regarded mitigation as irrelevant, and it did not err in considering the record of prior convictions to be an aggravating factor. (rule 4.421(b)(2).)[3] Because the court reasonably could have concluded that the aggravating factors outweighed the mitigating factors, its decision was neither a clear case of abuse nor a miscarriage of justice.

The sentence does not require reversal.

B.

Ineffective Assistance of Counsel

Appellant also makes the alternative argument that, if the challenge to the sentence were not preserved for appeal, the failure to make an adequate objection would have constituted ineffective assistance of counsel. Because we conclude that appellant’s attorney did object to the imposition of the upper term, and did preserve the challenge for appeal, this argument must necessarily be rejected.

IV.

DISPOSITION

The judgment is affirmed.

_________________________

Ruvolo, P. J.

We concur:

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Sepulveda, J.

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Rivera, J.

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[1] All subsequent undesignated statutory references are to the Penal Code.

[2] All further undesignated rule references are to the California Rules of Court.

[3] Appellant cites two cases, People v. Osband (1996) 13 Cal.4th 622 (Osband) and People v. Avalos (1984) 37 Cal.3d 216, for the proposition that a record of prior convictions is insufficient to support an upper term sentence. Neither is on point. Both are concerned instead with the question of whether error occurs when the court relies on the same factor to impose both an aggravated and a consecutive term. Osband additionally addresses the issue of error arising from aggravating a sentence through a fact that is also an element of the charged offense. (Osband, supra, 13 Cal.4th at p. 730.) Neither case suggests, however, that there is anything inappropriate about imposing an upper-term sentence on the basis of prior convictions.