Opinion
C042721.
10-24-2003
THE PEOPLE, Plaintiff and Respondent, v. NATHAN DURAN ARCHULETA, Defendant and Appellant.
Defendant Nathan Duran Archuleta appeals the sentence imposed upon revocation of his probation. He contends the trial court abused its discretion in imposing the midterm, as it improperly considered events occurring subsequent to the granting of probation in determining the appropriate sentence. We disagree and affirm.
STATEMENT OF RELEVANT FACTS AND PROCEDURAL BACKGROUND
On November 27, 2000, defendant pled no contest to a felony count of vandalism of a school. (Pen. Code, § 594, subd. (a).) On February 26, 2001, he was placed on formal probation for 36 months and imposition of sentence was suspended.
Between February 26, 2001 and September 9, 2002, defendant admitted to having violated probation three times. Following the first violation of probation, defendants probation was revoked, and reinstated on modified terms. Following the second violation of probation, the court again revoked probation, and reinstated defendant on modified terms. On the third violation, the court terminated probation, denied reinstatement and sentenced defendant to the midterm of two years in state prison.
DISCUSSION
Defendants sole contention on appeal is that the court improperly considered events subsequent to the granting of probation in deciding to sentence defendant to the midterm. Defendant correctly states that the general rule that where the court decides to revoke and terminate probation and impose a prison sentence, the court may only consider the "circumstances existing at the time probation was granted, and subsequent events may not be considered . . . ." (Cal. Rules of Court, rule 4.435(b)(1).) Defendant also correctly notes that it is proper under California Rules of Court, rule 4.414(b)(2), to consider a defendants performance on probation in determining whether to reinstate probation.
Initially, we disagree with defendants interpretation of the record. Here, the trial court was obliged to consider defendants performance on probation in determining whether or not to reinstate defendant on probation. The court did this. The court also determined the mitigating factors did not outweigh the aggravating factors and imposed the middle term. Once the court finds the aggravating and mitigating factors are evenly balanced against each other, the court must choose the middle term. (Pen. Code, § 1170, subd. (b); see People v. Reeder (1984) 152 Cal.App.3d 900.) The record does not establish that in weighing the aggravating and mitigating factors, the court relied on defendants conduct subsequent to the grant of probation. In the absence of such a record, we presume the trial court properly performed its duty. (Evid. Code, § 664; People v. White (1982) 133 Cal.App.3d 677, 682.)
Furthermore, although the rule "bars considering events subsequent to `the time probation was granted . . . . It does not specifically address a situation where, as here, probation is granted, revoked and then, . . . reinstated on modified terms. However, reinstating probation on modified terms appears to be a new grant of probation within the meaning of the rules. . . . [N]othing in the language of the rules bars considering events predating a reinstatement of probation." (People v. Harris (1990) 226 Cal.App.3d 141, 145-146, italics in original.) Accordingly, if the court did consider defendants failed performance on the initial grant of probation, and the initial reinstatement, it did not err since these events occurred prior to the final reinstatement of probation. (See People v. Harris, supra, at p. 147.)
DISPOSITION
The judgment is affirmed.
We concur: RAYE, J., and HULL, J.