Filed 10/4/17 P. v. Menchaca CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Larrie R. Brainard, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Allison L. Ehlert, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Alastair Agcaoili, and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Antonio Menchaca, Jr., of one count of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)) and found true the allegation that the weight of the methamphetamine exceeded 10 kilograms (Health & Saf. Code, § 11370.4, subd. (b)(3)). The trial court sentenced Menchaca to 12 years in prison, the two-year low term with a consecutive 10-year term for the weight allegation. The court then imposed a split sentence under Penal Code[1] section 1170, subdivision (h)(5)(B), ordering Menchaca to serve eight years in custody and the remaining four years on mandatory supervision.

Menchaca appeals, contending the trial court abused its discretion in ordering an eight-four split sentence. We reject this contention and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Facts

In September 2015 Menchaca drove from Tijuana to the Aliso Creek rest area, 10 miles south of the San Clemente Border Patrol checkpoint. The Aliso Creek rest area is a known staging area for illicit smuggling operations. Border Patrol Agent Eric Mendez saw Menchaca talk on the phone and walk quickly toward his truck while at the Aliso Creek rest area. Menchaca's old truck had a new license plate, which Agent Mendez testified is a sign of potential smuggling activity. Agent Mendez noticed Menchaca's behavior at the rest area and called his partner, Agent Noe Minas, for assistance. Agent Minas followed behind Menchaca in a marked patrol car and Menchaca slowed his vehicle and changed lanes. At the primary inspection area, Menchaca appeared nervous, began stuttering, and avoided eye contact. At the secondary inspection area, Menchaca began to sweat and tremble while speaking with agents. The agents searched the truck and found 48 bundles of methamphetamine concealed in the front fender. It took between three and four hours for agents to remove the drugs from the truck because of the complex design of the concealed compartment. The high quality methamphetamine weighed 11.2 kilograms and had a street value of over $1 million. Menchaca told officers that he did not know there were any drugs in the truck. He claimed that he was driving the truck for his uncle and he blamed his uncle for deceiving him.

B. Sentencing

The probation department submitted a presentence report recommending the court deny probation and sentence defendant to 13 years local custody. In the report, the probation officer explained that probation was inappropriate based on the amount of drugs involved, the sophisticated concealment of the contraband, and Menchaca's refusal to take responsibility for his actions. The report also indicated that Menchaca was not a suitable candidate for a split sentence because it would be difficult to supervise a person who lived in Mexico. The probation report recommended a 13-year sentence without mandatory supervision.

At the sentencing hearing, the defense moved the court to strike the 10-year sentence enhancement for the weight allegation and requested probation. In the alternative, the defense asked the court to impose a split sentence. The prosecution agreed with the probation officer's recommendations and asked that the court deny the motion to strike, decline probation, and refuse a split sentence.

At the hearing, the court denied both the motion to strike and probation. The court also stated it would impose the low term of two years because Menchaca had no prior criminal record, plus the 10-year enhancement for a sentence of 12 years. Believing that Menchaca would benefit from mandatory supervision after "substantial time" in custody, the trial court indicated its preference for a split sentence of eight years in custody with mandatory supervision for the remaining four years. The court reasoned that this substantial custody time would help Menchaca resist any temptation to return to drug smuggling. The court then asked to hear arguments on the split sentence.

The defense argued that Menchaca would "more than get the message" with six years in custody. The prosecution opposed the split sentence and argued that any mandatory supervision would be a "legal fiction" because the probation department would not be able to supervise Menchaca while he was living in Mexico. The court asked the probation officer to find out if there had been other instances of mandatory supervision for individuals residing in Mexico. In response, the defense suggested that Menchaca would be able to live in the United States. The court agreed to an eight-four split sentence if Menchaca committed to live in the United States for the period of mandatory supervision. The prosecution and probation officer agreed that the proposed condition would resolve supervision concerns. After conferring with counsel, Menchaca agreed to live in the United States and submit to the planned sentence. The prosecution asked the court to consider a nine-three split sentence, but the court imposed its indicated sentence of eight years in custody and four years of mandatory supervision.

DISCUSSION

Menchaca contends the court abused its discretion when it sentenced him to a split of eight years in custody and four years of mandatory supervision. We disagree with Menchaca's contentions and affirm the judgment.

I. RELEVANT LEGAL PRINCIPLES

When, as here, a defendant is sentenced under section 1170, subdivision (h)(1) or (2), the sentencing court "shall" impose a split sentence "[u]nless the court finds that, in the interests of justice, it is not appropriate in a particular case." (§ 1170, subd. (h)(5)(A).) However, the period of mandatory supervision is "selected at the court's discretion." (Ibid.)

The California Rules of Court[2] do not require a sentencing judge to state his or her reasons for imposing a particular split sentence. (See rule 4.406(b).) However, if the court denies mandatory supervision altogether, then "the court must state the reasons for the denial on the record." (Rules 4.415(d), 4.406(b)(11).) Not every decision made at a sentencing hearing requires an explanation on the record. For example, it is not necessary to state reasons for rejecting mitigating factors or for imposing concurrent terms. (People v. Lepe (1987) 195 Cal.App.3d 1347, 1350; People v. Davis (1980) 103 Cal.App.3d 270, 281.) Rule 4.406(b) enumerates the sentencing decisions that generally require a statement of reasons. While trial courts are required to state reasons for denying mandatory supervision, they are not required to state reasons for imposing a particular period of mandatory supervision. (Rule 4.406(b)(11).) Courts may consider "successful reintegration of the defendant into the community" as one factor affecting the length and conditions of mandatory supervision. (Rule 4.415(c)(3).)

We review a court's discretionary sentencing decision for abuse of discretion. (People v. Catalan (2014) 228 Cal.App.4th 173, 178.) An abuse of discretion occurs only if the court's decision exceeds the bounds of reason. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) Unless a clear case of abuse is shown and there has been a miscarriage of justice, we will not substitute our judgment for that of the trial court. (People v. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony).)

II. ANALYSIS

A. Abuse of Discretion

The trial court did not abuse its discretion by imposing a split sentence of eight years in local custody and four years of mandatory supervision. Under the abuse of discretion standard, the burden is on Menchaca to show that the court's decision was so irrational that no reasonable person could agree with it.[3] (Carmony, supra, at p. 371.)

Menchaca's only argument to support an abuse of discretion is that an even six-six split sentence would be a more reasonable sentence for a first time offender. However, the abuse of discretion inquiry is not whether more reasonable alternatives exist, it is whether any reasonable person could agree with the trial court's decision. (Carmony, supra, 33 Cal.4th at p. 371.) It is clear that Menchaca would have preferred an even six-six split sentence, but mere disagreement with the trial court's decision does not constitute an abuse of discretion. (Ibid.) While there were mitigating factors that weighed in Menchaca's favor, there were also circumstances that made his crime more serious. Menchaca never took responsibility for his involvement in the smuggling operation. He transported an inordinate amount of methamphetamine across the border, suggesting that he was a trusted member of the operation. Menchaca's sophisticated concealment of contraband only added to the seriousness of the offense. Given the circumstances, a reasonable person could agree that Menchaca deserved to spend at least eight years in custody and it is not our function to substitute our judgment for that of the trial court. (Id. at p. 377.) Menchaca has failed to show how eight years in custody is an arbitrary or unreasonable sentence for transporting over 10 kilograms of methamphetamine.

B. Failure to State Reasons

Menchaca also contends that the trial court was required to state its reasons for imposing its preferred split sentence, but this contention is waived on appeal as Menchaca failed to make a separate argument under an appropriate heading in his opening brief. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2016) ¶ 9:91, pp. 9-31 to 9-32; rule 8.204(a)(1)(B).) An argument not preceded by an appropriate heading may be deemed waived. (Golden Day Schools, Inc. v. Department of Education (1999) 69 Cal.App.4th 681, 695, fn. 9.)

Although Menchaca's contention that the trial court erred in failing to state reasons for selecting an eight-four split sentence is waived, we address the merits to avoid a habeas corpus petition for ineffective assistance of counsel. Citing People v. Sandoval (2007) 41 Cal.4th 825, 847, Menchaca contends that the trial court is required to state its reasons for sentencing decisions on the record. However, Sandoval is distinguishable because that case involved a failure to state reasons for imposing the upper sentence term, which is expressly required under section 1170, subdivision (b) and rule 4.406(b)(4). (Sandoval, at p. 847.) The rules do not require a trial court to state its reasons for imposing an uneven split sentence. Therefore, there was no error for failure to state reasons in this case.

Even if the court had been required to state its reasons for selecting an eight-four split sentence, the court provided an adequate explanation. The rules expressly state that a court can impose mandatory supervision in a manner that promotes "successful reintegration of the defendant into the community." (Rule 4.415(c)(3).) At the sentencing hearing, the trial court discussed how substantial custody time would help Menchaca reintegrate into the community:

"That seems to say, to me, that this is a man who probably will get the message. And no matter how much his uncle wants him or is willing to pay him or he's willing to get involved with these things, that he can be dealt with. However, that would be after a substantial time in custody."

Without substantial custody time, the court feared that Menchaca would succumb to familial pressure and return to drug smuggling. After hearing argument on the length of mandatory supervision, the court impliedly reasoned that eight years in custody would be the substantial time required for Menchaca to successfully reintegrate into the community. The court was not obligated to state its reasons for selecting an uneven sentence split sentence, but even if an explanation were required, the record contains an adequate explanation for the court's sentencing decision.

DISPOSITION

The judgment is affirmed.

NARES, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.