Filed 4/26/18 P. v. Sedrak CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

ARMEN SEDRAK,

Defendant and Appellant.

F074522

(Super. Ct. No. 15CM8789)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge.
Robert L.S. Angres, under appointment by the Court of Appeal, for Plaintiff and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Pursuant to a plea agreement, appellant Armen Sedrak pled no contest to one count of violating Vehicle Code section 23153, subdivision (b) and admitted a Penal Code section 12022.7 enhancement. Sedrak contends the trial court misunderstood its sentencing discretion when it declined to place him on probation and therefore, the matter should be remanded for a new sentencing hearing. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Because Sedrak pled before trial, the facts are taken from the probation report. The probation report states that on January 16, 2015, shortly after 12:30 p.m., Sedrak was driving his vehicle “aggressively” on Interstate 5 at a speed of about 80 miles per hour. California Highway Patrol (CHP) Officer Hicke was positioned on the shoulder of the highway and saw Sedrak’s vehicle approaching in the shoulder of the road behind the CHP car. Sedrak appeared to be using the shoulder like a traffic lane; Sedrak’s vehicle was not slowing down or steering to avoid the CHP car.
Hicke accelerated from a stop and drove onto the grass beside the shoulder of the highway, in order to avoid being hit by Sedrak’s vehicle. Sedrak passed the CHP car and accelerated. Hicke gave pursuit and estimated Sedrak to be traveling at speeds in excess of 100 miles per hour, weaving in and out of traffic. A second officer, Sergeant Coomer, gave pursuit and clocked Sedrak’s car traveling in excess of 110 miles per hour.
Coomer observed Sedrak appear to steer to the right in order to deliberately force a vehicle off the road; make several lane changes; and have multiple “near collisions” with other vehicles.
CHP Officer Lester was driving the third unit in the pursuit. All three pursuit vehicles lost sight of Sedrak because his car was continually using the center divider and shoulder to travel and weaving in and out of traffic in a reckless manner. At one point, Sedrak hit another vehicle from behind, causing that vehicle to overturn down an embankment. Sedrak did not stop at the scene of the collision.
Eventually, Hicke, Coomer, and Lester were able to locate Sedrak’s vehicle and effect a stop. Sedrak initially refused to comply with commands to exit the vehicle with his hands in the air. When Sedrak did exit, he was unsteady on his feet and there was “the odor of an alcoholic beverage emitting from his person.” Sedrak was informed he was under arrest for a hit and run.
Sedrak pled no contest on June 10, 2016, to one count of violating Vehicle Code section 23153, subdivision (b), with a section 12022.7 enhancement for great bodily injury. The plea form signed by Sedrak provided that it was an “open plea.” Sedrak intended to seek probation, but the form also acknowledged his plea subjected him to a potential prison term of six years. In exchange for his plea, other counts and allegations were dismissed.
The probation report filed September 12, 2016, stated the current offense was Sedrak’s third felony conviction , therefore, he was presumptively ineligible for probation pursuant to section 1203, subdivision (e)(4) absent unusual circumstances. The probation officer opined that there were “no unusual circumstances to overcome this rule of presumptive ineligibility.”
Criteria affecting probation, as identified in the probation report, included that the current offense was more serious compared to other instances of the same crime in that Sedrak was driving with a blood-alcohol content of .23 percent, nearly three times the maximum allowable limit; Sedrak fled the scene and engaged in a high speed chase; the victim suffered physical injuries as a result of Sedrak’s conduct; the victim suffered over $43,000 in damages; and Sedrak was an active participant, driving while under the influence of alcohol and drugs.
In addition, the probation report noted three circumstances in aggravation and two in mitigation. As aggravating circumstances, the report noted the current offense involved great bodily harm or the threat of great bodily harm in that Sedrak was driving recklessly at speeds reaching 100 miles per hour; Sedrak has engaged in violent conduct; and he had served a prior prison term. Circumstances in mitigation were listed as Sedrak having acknowledged wrongdoing at an early stage of the proceedings and having previously performed satisfactorily on parole and probation.
The probation officer concluded that Sedrak was not an appropriate candidate for probation, as no unusual circumstances overcame the presumption, and recommended imposition of the middle term of two years for the offense and a consecutive three years for the section 12022.7, subdivision (a) enhancement.
On September 16, 2016, the matter was before the trial court for sentencing. The victim gave a victim impact statement. The victim stated that the “97 mile per hour collision on January 16th, 2015, changed my life forever. My vehicle was thrown down a steep embankment rolled over twice then came to a jolting stop. Of course the car was destroyed. I was entrapped in the auto.” The victim went on to state that “Sedrak in a real sense left me for dead when he fled the scene. Of course I feared for my life in the minutes immediately following the crash.…”
The victim described his injuries as “four excruciating fractured right ribs and a partially collapsed lung. Other painful injuries were contusions to my chest wall and hips, as well as a right shin contusion and abrasion.… I suffered from lasting neck pain, limited mobility, and post traumatic stress disorder. Airbag deployment caused injuries to my face and arms.” The victim expressed that had the embankment not been soft, he might not have survived the collision.
The victim’s injuries limited his daily activities and “the simplest actions … provoked excruciating pain.” His sleep was affected for nearly two months and he was worried about paying for the medical care, side effects of medication, and contracting pneumonia because of “decreased lung function and inactivity.” The victim now was “afraid to drive on freeways” and news reports and movies with vehicle chases provoked flashbacks to his crash.
The victim concluded by asking “what measures the state will have to take in order to protect the public and peace officers from an alcoholic who has endangered lives, caused serious bodily injury, destroyed property, and fled a calamity which he himself orchestrated.” The victim opined, “justice will be served” if Sedrak was “incarcerated according to the seriousness of his actions.”
After submission of the victim impact statement, the sentencing was continued to September 20, 2016. At the September 20 sentencing hearing, defense counsel opined, “Sedrak presents an unusual case where the interest of justice would best be served in admitting him to probation.” The People stated they supported the recommendation set forth in the probation report of five years imprisonment and noted Sedrak was presumptively ineligible for probation because of his prior felony convictions.
The trial court concluded Sedrak was “statutorily ineligible for a grant of probation for two reasons, he has two prior felony convictions. And also the fact that he inflicted great bodily injury.” The trial court articulated numerous reasons why “the presumption against a grant of probation” could not be overcome, including that the instant offense was more serious as compared to other instances of the same crime because Sedrak was driving with a .23 percent blood-alcohol level and had used cocaine; Sedrak failed to stop at the scene and instead traveled at speeds in excess of 100 miles per hour in a reckless manner; there was extensive monetary loss to the victim; Sedrak was an active participant in that he was the driver of the vehicle; and Sedrak had “four prior felony convictions and one misdemeanor DUI conviction.” The trial court also noted that all three vehicles pursuing Sedrak “were unable to keep up” because of Sedrak’s “reckless driving.” The officers had to terminate the pursuit, but checked for any victims of Sedrak’s reckless driving. When Sedrak eventually was stopped, he failed to follow directions from law enforcement.
The trial court also noted that Sedrak received “an advantageous plea agreement in that multiple felonies were dismissed which would have significantly increased the amount of penalty.” The trial court weighed the factors in aggravation and mitigation, concluding that the low term of 16 months for the Vehicle Code section 23153, subdivision (b) offense was appropriate, with a consecutive three-year term for the great bodily injury enhancement, for a total term of four years and four months. Various fines and fees were imposed.
The abstract of judgment filed September 21, 2016, accurately reflects the oral pronouncement of judgment. On October 14, 2016, Sedrak filed a notice of appeal from “the sentence or other matters occurring after the plea that do not affect the validity of the plea.”
DISCUSSION
Sedrak contends the trial court erroneously believed that because he had inflicted great bodily injury when he drove with a blood-alcohol level of .23, he was presumptively ineligible for probation. Consequently, he contends the trial court misunderstood its discretion and the matter should be remanded for a new sentencing hearing.
Standard of Review
Section 1203, subdivision (e) provides that a defendant is presumptively ineligible for probation and probation shall not be granted a defendant “who has been previously convicted twice in this state of a felony” or “who willfully inflicted great bodily injury or torture in the perpetration of the crime of which he or she has been convicted,” except in unusual cases where the interests of justice would be served to grant probation. (§ 1203, subd. (e)(3) & (4).) Section 1203, subdivision (e)(3) “requires the defendant’s intent to cause great bodily injury or torture, not merely that the crime resulted in great bodily injury or torture.” (People v. Lewis (2004) 120 Cal.App.4th 837, 853.)
In determining whether the statutory limitation on probation has been overcome, the court is required to use the criteria set forth in California Rules of Court, rule 4.413. If the court finds the case to be an unusual one, it must then decide whether to grant probation, utilizing the statutory criteria set forth in rule 4.414. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 830.) We review the trial court’s finding that a case is not unusual for abuse of discretion. (Id. at p. 831.)
Inappropriate Factor Cited
Sedrak submits the trial court erred when it denied probation because it misunderstood its discretion and cited an inappropriate factor, section 1203, subdivision (e)(3). The People contend Sedrak forfeited this contention for purposes of appeal by failing to raise it in the trial court. (People v. Scott (1994) 9 Cal.4th 331, 353 [waiver doctrine applies to claims the trial court’s stated reasons allegedly do not apply to the case].)
The People are correct; Sedrak forfeited review of this contention. Sedrak did not raise any objection, or assert that the trial court’s stated reason that “he inflicted great bodily injury” was an inappropriate ground for presumptive ineligibility for probation. Sedrak cannot contend any such objection would have been futile. (See People v. Hill (1998) 17 Cal.4th 800, 821.)
Regardless of forfeiture of the issue, we address the merits of Sedrak’s contention.
Presumptively Ineligible for Probation
Preliminary, we note that one premise of Sedrak’s argument is correct: he was not presumptively ineligible for probation under section 1203, subdivision (e)(3). However, as the trial court stated at sentencing and as stated in the probation report, he was presumptively ineligible for probation because he had two or more felony convictions. (§ 1203, subd. (e)(4).)
Here, the probation officer’s conclusion that Sedrak was presumptively ineligible for probation under section 1203, subdivision (e)(4), and the trial court’s conclusion that Sedrak’s prior felonies made him ineligible, is sufficient grounds to find Sedrak presumptively ineligible for probation. The probation report found Sedrak presumptively ineligible for probation and identified factors affecting probation, concluding unusual circumstances warranting probation did not exist. The trial court read and considered the probation report in making its sentencing determination.
The trial court first stated Sedrak was presumptively ineligible for probation because “he has two prior felony convictions.” The trial court then remarked, “[a]nd also the fact that he inflicted great bodily injury.” It appears the trial court was primarily basing its finding of presumptive ineligibility on the prior felonies; the great bodily injury was secondary. The trial court clearly found Sedrak presumptively ineligible for probation under section 1203, subdivision (e)(4) because of his prior felonies, regardless of section 1203, subdivision (e)(3).
‘“The grant or denial of probation is within the trial court’s discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion. [Citation.]’ [Citation.] ‘In reviewing [a trial court’s determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court’s order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.’” (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.) “California courts have long held that a single factor in aggravation is sufficient to justify a sentencing choice .…” (People v. Brown (2000) 83 Cal.App.4th 1037, 1043.)
When we apply the foregoing principles to the instant case, where the record supports a conclusion that Sedrak was presumptively ineligible for probation, and multiple factors indicating this was not an unusual case warranting probation, we conclude the denial of probation was well within the trial court’s discretion and based upon statutorily permissible reasons.
Rule 4.413, specifies the trial court shall apply criteria set forth in the rule to determine if the current case is an unusual case where the statutory prohibition on probation is overcome. (Rule 4.413(b).) If the trial court finds that the instant matter is an unusual case overcoming the statutory prohibition on probation, then it shall apply the criteria in rule 4.414 to determine whether to grant probation.
Courts must construe “unusual case” and “interests of justice” narrowly so that the statutory limitations on probation have substantial scope and effect. (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1229.) Thus, unusual cases are limited to those matters in which the crime is either atypical or the offender’s moral blameworthiness is reduced. (Ibid.)
Under rule 4.413(c), facts that may indicate an unusual case include: (1) the circumstance giving rise to the limitation on probation is substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes; (2) the defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense; (3) the crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and (4) the defendant is youthful or aged and has no significant record of prior criminal offenses.
The trial court’s comments at sentencing reflect that it applied the criteria of rule 4.413(c) in determining Sedrak’s case was not unusual and he did not warrant probation. The trial court specifically noted that Sedrak had four prior felonies and a prior DUI misdemeanor, reflecting Sedrak had a significant prior criminal record (rule 4.413(c)(2)(C)). There was no finding, or any evidence to support a finding, that Sedrak acted under duress or great provocation. At 37 years of age, he was neither youthful nor aged. Furthermore, Sedrak’s current offense, where he inflicted great bodily injury pursuant to section 12022.7, qualified as a violent felony. (§ 667.5, subd. (c)(8).) Consequently, his current conviction is more, not less, serious than his prior convictions for theft and second-degree burglary, which also weighs against a finding of unusual circumstances. (Rule 4.413(c)(1)(B).)
Even though the trial court concluded Sedrak’s was not an unusual case overcoming the statutory prohibition on probation, the trial court also analyzed and applied the criteria in rule 4.414 as grounds for denying probation. Rule 4.414 sets forth nine criteria relating to the crime and eight criteria relating to the defendant to be applied in deciding whether to grant or deny probation.
The trial court articulated numerous criteria weighing against probation, including: (1) the nature of Sedrak’s offense was more serious than other instances of the same crime (rule 4.414(a)(1)); (2) his actions caused significant physical injuries to the victim (rule 4.414(a)(4)); (3) the degree of monetary loss to the victim was extensive (rule 4.414(a)(5)); (4) Sedrak was an active participant in the crime (rule 4.414(a)(6)); and (5) his prior record of criminal conduct (rule 4.414(b)(1)).
The record before us demonstrates the trial court was fully aware it had discretion to grant probation. To the extent the trial court mentioned the infliction of great bodily injury as a secondary reason Sedrak was presumptively ineligible for probation, it was harmless. (People v. Gutierrez (1987) 195 Cal.App.3d 881, 884-885.) The trial court found Sedrak presumptively ineligible under section 1203, subdivision (e)(4) because of his multiple prior felonies and then considered all relevant criteria under rule 4.413 before determining Sedrak’s was not an unusual case that overcame the presumption. The trial court then took the further step of analyzing and applying the criteria in rule 4.414 and concluded under “all the circumstances” probation was denied. It is not reasonably probable the trial court would have found Sedrak eligible for probation or granted probation absent the erroneous great bodily injury comment. (People v. Gutierrez, supra, at pp. 884-885.)
Sedrak has not demonstrated the trial court misunderstood its discretion or abused that discretion.
DISPOSITION
The judgment is affirmed.