Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FSB801040 Annemarie G. Pace, Judge.
Susanne C. Washington, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
A jury convicted defendant and appellant Rowland James Koenig of burglary (Pen. Code, § 459) and vandalism causing damage greater than $400 (§ 594, subd. (b)(1)). The trial court denied probation, which had been recommended by the probation officer’s report. It instead imposed the midterm of two years for each offense but stayed the vandalism count pursuant to section 654. Defendant contends that denying probation and imposing the midterm were abuses of discretion. Defendant also contends there was insufficient evidence that he was able to pay $150 in reimbursement toward the cost of his appointed counsel. We affirm.
Further statutory references are to the Penal Code unless otherwise stated.
I. BACKGROUND
Around 3:15 a.m. on March 4, 2008, a power failure triggered a silent alarm at a water pump site. While in route to the site, a pump operator called the police at 3:28 a.m. He met two sheriff’s deputies at the entrance to the site at approximately 3:58 a.m. The operator had last been at the site at 10:50 a.m. on March 3, 2008.
Defendant was found inside an approximately 10 by 10 feet wide pump building. In his pockets, defendant had two screwdrivers, a pliers multipurpose tool, and a wire connector. There were tools around the room; lying on the well, inside of boxes on the wall, and on the floor across the room from where defendant was found. A duffle bag was also in the room. It contained rolled up wires and more tools. Outside, a small stepladder was adjacent to a large vent cover.
Wiring at the electrical box outside the building had been broken, but the wiring in the box was still live. The wires appeared to have been broken by being snapped rather than cut. Because the wires were encased in metal conduit, bending the conduit to snap the wire could have resulted in a lethal shock. Inside, the electrical cabinet had been opened, partially dismantled, and wires had been cut. The transfer switch had been dismantled and the wires were in the process of being cut.
Defendant lived about a mile from the pump building. He testified that he was on his way to the bus stop to take a bus to retrieve an impounded bike. He took a shortcut through the area by the pump building, but had to use the restroom. “[R]ather than just pee out in public, ” defendant hopped over the brick wall surrounding the pump building, “went in the building and realized it wasn’t a restroom.” He said the door was open when he arrived. When he saw headlights approaching, he hid in the pump building. He had the screwdrivers and multipurpose tool so he “could do a tire patch job” once he retrieved his bike. He denied having a wire connector on his person. He said the duffel bag containing tools and bundles of wire did not belong to him and denied “tak[ing] control of any of the other tools that were located in the water pump building.” He thought the bus would start running at 6:00 a.m. He left early to have time to grab something to eat by the bus stop, and because he normally did not ride the bus. He was trying to get to the impound lot “before 9:00 or 10:00 to check in and find out what [he] had to do to get [his] bike back.” Defendant had “been to a salvage yard before to recycle various metals including copper wire.”
The probation officer’s report reluctantly recommended defendant be placed on probation. The report described his suitability as questionable because of two other outstanding matters and his lack of responsibility in this matter. The report noted defendant was previously employed, had heavy equipment training, had no income at present, no assets, and $15,000 in medical debts, but recommended “all fines and fees” be imposed because “defendant is capable of obtaining employment.” The report listed the following criteria affecting probation: “The nature and circumstances of the crime are not serious, as compared with other instances of the same crime.” (Cal. Rules of Court, rule 4.414(a)(1).) “The manner in which the crime was carried out demonstrated planning and criminal sophistication on the part of the defendant.” (Rule 4.414(a)(2).) “The defendant does have a prior record of criminal conduct. That prior record does indicate a pattern of regular or increasingly serious criminal conduct.” (Rule 4.414(b)(1).) “The defendant’s prior performance on probation was unsatisfactory. The defendant was not on a grant of probation at the time he committed the present offense.” (Rule 4.414(b)(2).) “The defendant has indicated a willingness to comply with the terms of probation.” (Rule 4.414(b)(3).) “The defendant has a limited ability to comply with terms of probation, as indicated by the defendant’s ongoing criminal conduct.” (Rule 4.414(b)(4).) “Imprisonment will seriously affect the defendant.” (Rule 4.414(b)(5).) “A felony conviction will adversely affect the defendant’s life.” (Rule 4.414(b)(6).) “The defendant has not shown remorse.” (Rule 4.414(b)(7).) “There is little likelihood that if not imprisoned, the defendant will be a danger to others.” (Rule 4.414(b)(8).) As circumstances in aggravation the report stated: “The manner in which the crime was carried out indicates planning and sophistication.” (Rule 4.421(a)(1).) “The defendant’s prior convictions as an adult are numerous and of increasing seriousness.” (Rule 4.421(b)(1).) “The defendant’s prior performance on probation was unsatisfactory.” (Rule 4.421(b)(2).) The report stated no circumstances in mitigation.
Further references to rules refer to the California Rules of Court.
Defendant was sentenced on April 2, 2009. The trial court commenced the hearing by stating that it had read the probation officer’s report, was “not intending to follow the report, ” and instead intended to send defendant to prison because it did not consider probation a viable option. Defendant’s trial counsel disagreed and argued for supervised probation. The trial court denied probation because defendant “has never taken responsibility for his actions in this case... he has been on misdemeanor probation three times, violated one of those probations once. [¶] There is also a failure to appear. One of his misdemeanor convictions is second-degree burglary, which is one of the primary charges he was convicted of in this case. [¶] Under those circumstances, I don’t think probation is appropriate.”
Defense trial counsel then argued for the low term because defendant did not have any prior felony convictions, and only three misdemeanor convictions. The trial court chose “the middle term for the following reasons: In addition to having taken no responsibility and, in this Court’s opinion, lying on the stand, [defendant] created a significant amount of damage as evidenced at trial, that being almost $6,000. [¶] The crime was sophisticated in that [defendant] had to bring a ladder and tools to commit the crime. He had to scale a wall and break into a locked facility to commit the crime. He had to cut the power to that facility in order to steal the wire that he was in the process of stealing when he was apprehended. [¶] He doesn’t come to court with a clean record. He has three misdemeanor convictions, one of which was a prior burglary conviction.” Defendant was sentenced to the midterm of two years for both the burglary and vandalism counts. Defendant was given credit for 591 days. Defense trial counsel then asked to be heard, but the trial court proceeded to advise defendant of his right to appeal without responding to the request to be heard. After defendant was advised of his right to appeal, defense counsel raised the issue of section 654, which the trial court agreed with and stayed the vandalism count. Defense trial counsel made a nonspecific objection under United States v. Cunningham or People v. Cunningham to the imposition of the midterm instead of the low term.
Defendant’s trial counsel was likely referring to Cunningham v. California (2007) 549 U.S. 270.
II. STANDARD OF REVIEW
Sentencing decisions are reviewed for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) Defendants bear a heavy burden when attempting to show an abuse of discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) “ ‘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.’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
III. PROBATION DENIAL
Defendant contends the denial of probation was an abuse of discretion because the factors relied upon were erroneous and inadequate. In particular, defendant challenges the consideration of his lack of responsibility, prior performance on probation, and past criminal history. He also contends there were numerous factors favoring probation. The People contend the trial court’s evaluation of factors was appropriate and, thus, its denial of probation was not an abuse. We agree with the People.
A. Remorse
Lack of remorse is a proper factor to consider when deciding whether to grant probation; however, a defendant’s lack of remorse, or refusal to take responsibility for the offense, may not be used as an aggravating factor if “ ‘the defendant has denied guilt and the evidence of guilt is conflicting.’ [Citation.]” (People v. Leung (1992) 5 Cal.App.4th 482, 507.) Defendant contends the evidence was conflicting because: 1) defendant would have to have carried the ladder and the duffel bag full of tools and then made the return journey, with the addition of wires, back to his home a mile away, and 2) the timing meant that defendant would have accomplished a lot within 35 minutes. However, there was no evidence that defendant could not or did not carry the necessary load and accomplish the damage in roughly 35 minutes, and the only evidence contradicting the prosecution’s theory was defendant’s less than credible testimony. Thus, we find no error with the trial court’s interpretation that the evidence against defendant was overwhelming and no abuse of discretion in the trial court’s use of this factor.
B. Probation Performance
Without citing to legal authority in support of his argument, defendant contends that it was abuse of discretion for the trial court to use his single probation violation as a reason for denying probation because his violation occurred nine years prior when he was 21 years old. However, rule 4.414 provides that prior performance on probation is a criterion affecting the decision to grant probation, and rule 4.409 requires that relevant criteria “must be considered.” Accordingly, the trial court had to consider defendant’s probation history, and it was within the trial court’s discretion to use defendant’s nine-year-old violation as one of its reasons justifying the denial of probation. (See People v. Towne (2008) 44 Cal.4th 63, 85 [“The trial court may consider any ‘criteria reasonably related to the decision being made’ ”].)
C. Past Criminal History
Again without citation to legal authority in support of his arguments, defendant contends his criminal history of misdemeanor convictions does not show a pattern of increasingly serious conduct, and thus does not support the trial court’s decision. However, the full criteria are the “[p]rior record of criminal conduct, whether as an adult or a juvenile, including the recency and frequency of prior crimes; and whether the prior record indicates a pattern of regular or increasingly serious criminal conduct.” (Rule 4.414 (b)(1).) The rule requires consideration of both the prior record and whether the record indicates increasingly serious criminal conduct. Having been required to consider both the record and the increasing seriousness of that record, the court may use either the prior record or its increasing seriousness as a sentencing factor. This is because “[t]he trial court may consider any ‘criteria reasonably related to the decision being made, ’ ” and a prior record, even in the absence of increasingly serious offenses, is a recidivism indicator that is reasonably related to whether probation should be granted. (People v. Towne, supra, 44 Cal.4th at p. 85.)
D. Additional Factors
Defendant contends the trial court based “its decision not on the factors enumerated in rule 4.414, but on the fact that [defendant] refused to accept the plea bargain offers that would have had essentially the same result that [defendant] was requesting at the sentencing hearing.” However, “a reviewing court will presume the trial court had a proper basis for a particular finding or order. [Citation.]” (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) The trial court stated its reasons and there is no indication it disregarded the existence of other factors in reaching its decision. Accordingly, there is no affirmative support for defendant’s bald assertion.
IV. TERM SELECTION
Defendant contends the trial court abused its discretion by imposing the midterm sentence. In particular, defendant challenges the trial court’s reliance on the following factors: 1) failure to take responsibility; 2) significant damage; 3) criminal planning, sophistication, or professionalism; and 4) criminal history. The People assert defendant has forfeited the issue by failing to object below, that aggravating circumstances justify the sentence, and that even if improper factors were used the error was harmless. We reach the merits and find no abuse in the trial court’s use of the factors.
A. Forfeiture
The People contend defendant has forfeited the right to challenge the term selection because defense trial counsel did not object. Defendant contends objections were raised as to the use of defendant’s criminal history, as well as the lack of remorse. Defendant further contends that the forfeiture rule does not apply because a meaningful opportunity to object was not provided.
“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. [Citation.] The rule applies to ‘cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons’ [citation], but the rule does not apply when the sentence is legally unauthorized [citation].” (People v. Gonzalez (2003) 31 Cal.4th 745, 751.) However, there must be a meaningful opportunity to object, which can occur “ ‘only if, during the course of the sentencing hearing itself and before objections are made, the parties are clearly apprised of the sentence the court intends to impose and the reasons that support any discretionary choices.’ [Citation.]” (Ibid.)
Because defendant’s trial counsel indirectly raised the issue of what factors were being relied upon, and objected generically after the sentence was imposed, we will address the merits. (See People v. Bruner (1995) 9 Cal.4th 1178, 1183, fn. 5 [where preservation of issue is “close and difficult” it is assumed the right to appeal has been preserved].)
B. Remorse
Much as the trial court could consider defendant’s lack of remorse (or failure to take responsibility) in weighing probation (ante, III A & C), it could also consider this factor while selecting a term. (See People v. Bowen (1992) 11 Cal.App.4th 102, 106.)
C. Criminal History
Defendant’s challenge to the use of his record as an aggravating factor is the same to his challenge to the use of his record to deny probation. Thus, defendant contends that his misdemeanors do not show a pattern of increasingly serious conduct. However, for term selection, this criterion derives from rule 4.421 and not the rule governing probation, rule 4.414. Under rule 4.421 the conviction for which defendant is being sentenced is part of the record being considered. (See People v. Searle (1989) 213 Cal.App.3d 1091, 1098 [defendant’s present “conviction for selling cocaine is plainly more serious” than prior driving while intoxicated convictions].) Defendant’s prior record consisted of misdemeanors, but his present convictions were felonies. By graduating from misdemeanors to felonies, defendant’s conduct has become increasingly serious. (See People v. Black (2007) 41 Cal.4th 799, 820 [“The relative seriousness of... convictions may be determined simply by reference to the range of punishment”].)
D. Damage
Defendant contends that the $6,200 in damage was not significant so as to justify a midterm sentence. The People do not address the point and contend any error was harmless because there is no reasonable probability the trial court would have chosen a lesser sentence. Defendant’s specific contention is that the $6,200 in damages was de minimiswhen compared to the $65,000 threshold to trigger a sentence enhancement under section 12022.6. However, as noted in the Advisory Committee Comment to rule 4.421 “a taking or loss of great value may be [a circumstance] in aggravation even if not meeting the statutory definitions for enhancements.” Accordingly, we find no abuse of discretion in the trial court considering $6,200 in damage as a reason for imposing a midterm sentence.
E. Planning, Sophistication, or Professionalism
Defendant contends that the crime was not sophisticated or professional because defendant had to carry tools and a ladder over a mile, damaged the conduit in a manner that could have killed him, and committed the burglary in the dark with only a small flashlight. Nonetheless, bringing necessary tools, even if better tools would have been more appropriate or permitted a safer interaction with live wires, does indicate some sophistication and professionalism. (See People v. Mathews (1980) 102 Cal.App.3d 704, 710 [“Professionalism does not so much import the notion of expertise as it does experience, ” which can be shown by foresight, planning, calmness and deliberation that negate the view that the crime was random or spontaneous].) Accordingly, we find no abuse of discretion in the trial court’s reliance on this factor as a reason to impose a midterm sentence.
V. COUNSEL FEES
Defendant contends there was insufficient evidence to support the trial court’s implied finding that he had the ability to pay $150 in reimbursement of appointed counsel fees. The People contend the probation report was sufficient justification to support the implied finding that defendant could pay “the small amount of $150.00.”
“Subdivision (b) of section 987.8... provides that, upon the conclusion of criminal proceedings in the trial court, the court may, after giving the defendant notice and a hearing, make a determination of his present ability to pay all or a portion of the cost of the legal assistance provided him.” (People v. Flores (2003) 30 Cal.4th 1059, 1061.) “Subdivision (g)(2)(A), (B) of section 987.8 defines ‘ “[a]bility to pay” ’ as including a defendant’s ‘reasonably discernible future financial position, ’ as well as his ‘present financial position, ’ but stipulates that ‘[i]n no event shall the court consider a period of more than six months from the date of the hearing for purposes of determining the defendant’s reasonably discernible future financial position.’ ” (Id. at p. 1063, fn. 2). “[T]here is a presumption under the statute that a defendant sentenced to prison does not have the ability to reimburse defense costs. Subdivision (g)(2)(B) of section 987.8 provides in pertinent part: ‘Unless the court finds unusual circumstances, a defendant sentenced to state prison shall be determined not to have a reasonably discernible future financial ability to reimburse the costs of his or her defense.’ ” (Id. at p. 1068.)
While defendant was sentenced to prison with a term of two years, he was given credit for 591 days. Thus, unlike a typical sentence, defendant would be out of prison within the six month window in which the trial court could consider his reasonable discernible future financial position. While defendant was in debt, without assets, and without current employment, the probation officer’s report informed the court that defendant was previously employed, had heavy equipment training, and was “capable of obtaining employment.” Accordingly, sufficient evidence supports the trial court’s implied findings that the short amount of time remaining on defendant’s prison term was unusual and that defendant would have the present ability to pay $150 within six months from sentencing.
VI. DISPOSITION
The judgment is affirmed.
We concur: McKINSTER J. MILLER J.