Opinion
NOT TO BE PUBLISHED
Superior Court of San Luis Obispo of County, No. F397419, Dodie A. Harman, Judge.
Greg May, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Nima Razfar, Deputy Attorney General, for Plaintiff and Respondent.
GILBERT, P.J.
Christopher M. Curzon appeals a judgment of conviction following his nolo contendere plea to attempting to file a false or forged instrument, perjury, and computer fraud. (Pen. Code, §§ 115, subd. (a), 118, subd. (a), 502, subd. (c)(1).) We conclude that the trial court did not abuse its discretion by denying probation to Curzon, and affirm.
All further statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
California law requires vehicle owners to submit their vehicles to periodic exhaust emissions testing. Vehicles that fail the test procedures must be repaired and retested. The Bureau of Automotive Repair licensed Curzon as a "smog technician" to test vehicle exhaust emissions. Technicians perform the test by placing a sampling probe into the tailpipe of the vehicle being tested, and conveying information concerning the vehicle's emissions by computer. Louie's Auto Clinic in Grover Beach employed Curzon to test vehicle emissions of its customers' vehicles.
The Bureau of Automotive Repair suspected that Louie's Auto Clinic circumvented the emissions testing procedures for particular vehicles by testing the emissions of another vehicle instead, an illegal practice known as "clean-piping." A Bureau employee conducted video surveillance of Louie's Auto Clinic on five dates between August 29, and November 30, 2005, and concluded that Curzon was "clean-piping" vehicles, and not performing a required fuel-cap-function test.
The prosecutor charged Curzon with six counts of attempting to file a false or forged instrument, six counts of perjury, and two counts of computer fraud.
On August 29, 2007, Curzon waived his constitutional rights and pleaded nolo contendere to one count of attempting to file a false or forged instrument, one count of perjury, and one count of computer fraud. (§§ 115 subd. (a), 118, subd. (a), 502, subd. (c)(1).) Curzon's plea agreement provided a two-year maximum sentence in exchange for his plea. The trial court informed Curzon that at sentencing, he might receive a grant of probation with jail confinement, or up to two years' imprisonment. Following Curzon's plea, it dismissed the remaining counts.
The sentencing probation report discussed three aggravating factors and one mitigating factor, and recommended that Curzon receive a grant of probation. The trial court stated that it had reviewed the probation report and it then discussed the three factors in aggravation and one factor in mitigation: "I will find . . . the manner in which the crime was carried out, clearly indicates planning, sophistication and professionalism . . . . [T]he defendant's prior convictions as an adult are numerous and of increasing seriousness. . . . [T]he defendant has served a prior prison term. . . . As [a] factor in mitigation I find . . . the defendant voluntarily acknowledged wrongdoing at an early state of the criminal process." The trial court denied a grant of probation and sentenced Curzon to two years' imprisonment on each count, to be served concurrently.
Curzon appeals and contends that the trial court abused its discretion by denying probation because it did not "[p]roperly consider[] the aggravating factors or additional factors warranting probation.
DISCUSSION
Curzon argues that the trial court "mistakenly appli[ed]" the aggravating factors. (People v. Read (1990) 221 Cal.App.3d 685, 691 [evidence must support reason given by sentencing court for denying probation].) He also points to factors favoring probation -- lack of an individual victim, his willingness to comply with probation, and likelihood that he is not a danger to others.
Curzon asserts that his crimes are not of increasing seriousness because the present crimes are less serious than his long criminal history of driving under the influence of drugs or alcohol, and possession of drugs. He adds that 19 of his 21 prior convictions occurred before 1998, and his present crimes are theft-related, rather than alcohol and drug-related. (Cal. Rules of Court, rule 4.414 (b)(1), [criteria affecting probation include frequency of prior crimes and existence of increasingly serious conduct].) Curzon points out that his prior prison terms were imposed in 1990 and 1992. He asserts that his present crimes are not sophisticated nor did they involve planning or professionalism.
"Probation is an act of clemency that is granted only in the discretion of the judge." (People v. Read, supra, 221 Cal.App.3d 685, 689.) The trial court possesses broad discretion to grant or deny probation, and its decision will not be set aside unless it is unreasonable. (People v. Warner (1978) 20 Cal.3d 678, 683.) Defendant bears the burden of establishing that denial of probation was unreasonable or arbitrary. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.)
The essence of Curzon's argument is a tacit request for an independent review of the probation and sentencing hearing. Yet it is well-settled that only in an extreme case should an appellate court interfere with the trial court's discretion in granting or denying probation. (People v. Lippner (1933) 219 Cal. 395, 400 [defendant must make "a very strong showing" to set aside an order denying probation].) "'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.)
Here the trial court found that Curzon suffered numerous criminal convictions, served two prior prison terms, and his recent crimes were increasingly serious. (Cal. Rules of Court, rule 4.414 (b)(1) [factors affecting probation includes defendant's record, including the recency and frequency of prior crimes].) He also benefited from grants of probation on fourteen prior occasions. Indeed, at the time of the present offenses, Curzon was on probation for possessing an illegal cable television connection. Although the present crimes may not have been particularly sophisticated, they did involve the planned clean-piping of several vehicles. The victims of Curzon's crimes are members of the public who must breathe polluted air. Moreover, the present crimes are more serious than Curzon's most-recent offense, possession of an illegal cable television connection.
We cannot say as a matter of law that the trial court should have found that factors favorable to a grant of probation outweighed the factors against probation, or that the trial court's conclusion is unreasonable. It is empowered to weigh the evidence of Curzon's criminal record, the seriousness of his crimes, and the remoteness of his prison terms. We conclude that the trial court did not abuse its discretion.
Moreover, Curzon has not established that any arguable error is prejudicial. Assuming that the trial court erred in its consideration of factors affecting probation, Curzon has not shown that it is reasonably probable that the trial court would have granted him probation had it not so erred. (People v. Weaver, supra, 149 Cal.App.4th 1301, 1318-1319.)
The judgment is affirmed.
We concur: COFFEE, J., PERREN, J.