Filed 11/7/18 P. v. Hart CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

A jury found defendant Michael Frederick Hart guilty of first degree residential burglary (Pen. Code,^[1] § 459). The trial court sentenced Hart to the low term of two years in prison and awarded him 48 days of credit for time in actual custody plus section 4019 credit.

Hart now appeals raising three issues: (1) the trial court abused its discretion in denying probation; (2) the trial court imposed a prison term to punish him for exercising his right to a jury trial; and (3) remand is required because the trial court erroneously calculated his pre-sentence custody credits.

We agree a remand is warranted to give the trial court the opportunity to re-calculate Hart’s pre-sentence custody credits. In all other respects, the judgment is affirmed.

BACKGROUND

In October 2016, the victim—a dealer in estate jewelry and antiques—suffered a stroke. Hart witnessed the victim exhibiting symptoms of having a stroke and was present at the victim’s apartment when he eventually went to the hospital. The evidence at trial showed Hart and co-defendant Antonio Tavera entered the victim’s apartment without permission the day after his hospitalization where they broke into his locked room, and stole numerous items, including a computer, collectible coins, gold watches and jewelry. The day after the burglary, Hart went to a pawn shop and tried selling various items, such as watches, scrap gold, old mercury dimes, and a ring.

A jury found Hart guilty of first degree residential burglary. Prior to sentencing, the defense filed a sentencing memorandum asking the trial court to place Hart on probation. Defense counsel argued, among other things, “unusual circumstances” warranted probation: namely, the burglary took place when no one was home, so no potential for violence existed; Hart was suffering from depression and abusing substances, which explained his deviation from a law-abiding life; Hart was 53 years old and this was his first felony conviction; and he had no criminal record at all for the preceding 16 years. Defense counsel also argued Hart was suitable for probation.

The People filed their own sentencing memorandum recommending a prison sentence. In short, the People claimed Hart was presumptively ineligible for probation pursuant to section 462; no unusual circumstances existed to overcome that presumption; and even if the court found him eligible Hart was unsuitable for probation under the criteria set out in California Rules of Court, rule 4.414.[2]

The probation department filed a report stating Hart was presumptively ineligible for probation; no unusual circumstances as set out in rule 4.413 existed; but even if some unusual circumstance did exist, Hart was unsuitable for probation under the criteria set out in rule 4.414.

DISCUSSION

I.

The Trial Court Did Not Abuse Its Discretion in Finding No Unusual Circumstances Overcoming the Presumption Against Probation.

Hart does not contest that his first degree residential burglary conviction left him presumptively ineligible for probation pursuant to section 462, subdivision (a). Instead, he contends the trial court abused its discretion in finding no unusual circumstances justified probation by failing to expressly address each fact that defense counsel argued constituted unusual circumstances. He also contends the trial court abused its discretion in refusing to place him on probation under the factors in rule 4.414.

The People counter by arguing this claim has been forfeited and in any event fails on the merits. We agree on both counts.

“ ‘A party in a criminal case may not, on appeal, raise “claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices” if the party did not object to the sentence at trial.’ ” (People v. Sperling (2017) 12 Cal.App.5th 1094, 1100.) “[A] defendant cannot remain mute while the trial court states its reasons for imposing a sentence and then on appeal claim that its statement of reasons was defective.” (Id. at p. 1101.) “ ‘The reason for [the forfeiture] rule is that “[i]t is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided.” [Citations.] “[T]he forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.” ’ ” (Ibid.)

Here, Hart has done exactly what the foregoing decisional authority proscribes: he complains the trial court failed to expressly address each of the facts defense counsel argued constituted unusual circumstances justifying probation, after having remained mute when the trial court imposed a sentence without addressing each of those facts. There is nothing in the record indicating defense counsel could not have asked the trial court to expressly address each of the defense’s points. Had Hart timely and specifically objected, the trial court presumably could have explicitly addressed each of defense counsel’s points.

Even if the issue had been properly preserved, we would find no abuse of discretion. In his opening brief, Hart contends the trial court abused its discretion in failing to find unusual circumstances because it did not expressly address each of the facts defense counsel argued. We disagree. Hart cites no authority holding a trial court is obliged to expressly address each alleged fact a defense attorney claims constitutes unusual circumstances. Further, his argument cannot be squared with rule 4.409, which provides that relevant factors are deemed considered unless the record affirmatively shows otherwise. Hart does not mention, much less grapple with rule 4.409. Notably, nothing in the record suggests that the trial court did not consider all the factors set out in rule 4.413. Instead, the record indicates the trial court considered the sentencing memoranda filed by both parties, the probation report and the statements made by various people at the sentencing hearing, including the attorneys.

Hart also argues the trial court abused its discretion in rejecting defense counsel’s points as to why this was an unusual case justifying probation. This claim also fails.

When a statute renders a defendant presumptively ineligible for probation, a court determines whether the presumption against probation is overcome pursuant to the criteria set forth in rule 4.413. The existence of a factor set out in rule 4.413 may indicate the existence of an unusual case, but such a finding is permissive, not mandatory; i.e., “ ‘[t]he trial court may but is not required to find the case unusual if the relevant criterion is met under each of the subdivisions.’ ” (People v. Stuart (2007) 156 Cal.App.4th 165, 178.)

“ ‘The standard for reviewing a trial court’s finding that a case may or may not be unusual is abuse of discretion.’ [Citation.] The trial judge’s discretion in determining whether to grant probation is broad. [Citation.] ‘[A] “ ‘decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” ’ ” ’ [Citation.] ‘[T]hese precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.’ [Citation.] Generally, ‘ “ ‘[t]he 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.’ ” ’ ” (Stuart, supra, 156 Cal.App.4th at pp. 178–179.)

Having considered the record, we cannot say the trial court abused its discretion in refusing to find unusual circumstances overcoming the presumption against probation. At the sentencing hearing, defense counsel argued three circumstances warranted a finding of unusual circumstances. First, although stealing from a hospitalized person is reprehensible, the crime occurred under circumstances where there was no danger of violence with a startled homeowner. Second, Hart’s depression and substance abuse offered a reason for the crime and the potential for rehabilitation. Third, this was his first felony conviction at age 53 and he had no criminal record for the preceding 16 years. However, the seriousness of the crime in comparison to other residential burglaries, and whether Hart should be considered “aged” at 53, are matters about which reasonable people can disagree. (Stuart, supra, 156 Cal.App.4th at p. 179.) With regard to Hart’s mental state, former and present rule 4.413, subdivision (c)(2)(B), says an unusual circumstance exists when “[t]he 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 . . . .” (Italics added.) Hart does not point to evidence that would support the conclusion there was a high likelihood he would respond favorably to mental health care and treatment.

II.

The Trial Court Did Not Impose a Prison Term to Punish Hart
for Exercising His Right to a Jury Trial.

Hart argues the trial court imposed a prison term to punish him for exercising his right to a jury trial. We reject the argument. As Hart acknowledges, to succeed in making this type of claim he must make “some showing, properly before the appellate court, that the higher sentence was imposed as punishment for exercise of [a constitutional or statutory] right.” (People v. Angus (1980) 114 Cal.App.3d 973, 989–990.) As Hart also acknowledges, “there is nothing on the record that was said by either the trial court or the prosecutor that directly makes this showing.” Further, our review of the record shows the trial court made its sentencing decision based on its evaluation of the evidence in the case, and without regard to any pretrial offers.

III.

Hart Is Entitled to a Remand to Give the Trial Court the Opportunity to Re-calculate His Pre-sentence Custody Credits.

Hart challenges his pre-sentence custody credit award, arguing the probation report shows he was in actual custody for 53 days but the trial court only awarded him 48 days and offered no explanation for the disparity. Hart claims a remand is necessary to verify the accuracy of his dates in custody. The People concede the issue. We accept the concession and will remand to give the trial court the opportunity to re-calculate Hart’s pre-sentence custody credits.

DISPOSITION

The matter is remanded to give the trial court the opportunity to re-calculate Hart’s pre-sentence custody credits. The judgment is affirmed in all other respects.

STEWART, J.

We concur.

KLINE, P.J.

MILLER, J.

People v. Hart (A151904)