Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kings County, No. 07CM1664. Thomas DeSantos, Judge.
Law Offices of Allen G. Weinberg, and Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Janis Shank McLean and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Respondent.
Before Ardaiz, P.J., Levy, J. and Hill, J.
INTRODUCTION
Jose Antonio Mendoza appeals from a judgment imposing a middle term of two years in state prison. He contends that the trial court abused its discretion in imposing the middle term because the probation report erred in concluding that the mitigating and aggravating factors are “in rough balance.” For the following reasons, we affirm.
STATEMENT OF THE CASE
On July 5, 2007, a seven-count felony complaint was filed in Kings County Superior Court against appellant. On August 13, 2007, appellant pled guilty to count 1, possession of methamphetamine for sale, and entered a Harvey waiver as to count 3, receipt or possession of a stolen gun, in exchange for dismissal of the remaining counts. (People v. Harvey (1979) 25 Cal.3d 754, 758 [holding that, at sentencing, the court could not consider charged offenses that were dismissed, absent an agreement to the contrary.]) During the hearing, the court advised appellant that, as a result of his plea, he could be sentenced to state prison for 16 months, two years, or three years.
On September 6, 2007, the Kings County Probation Department filed its report recommending that the court sentence appellant to the middle term of two years in state prison.
On September 11, 2007, the trial court denied appellant probation and sentenced him to two years in state prison, with 135 days of credit for local time served and conduct credits.
Because a plea was entered, the facts are based upon the probation officer’s report.
During the early hours of May 12, 2007, appellant provided methamphetamine to three individuals and smoked methamphetamine with them. At approximately 3:00 a.m., Kings County Sheriff’s Deputy Jeff Stamper was on patrol and initiated a traffic stop of a vehicle that had improper rear license plate lights. Appellant was seated in the rear passenger seat. The driver gave the deputy permission to search the vehicle. Under the seat in which appellant was seated, the deputy recovered a one-inch-by-one-inch clear ziplock baggie, a bag containing 16.3 grams of methamphetamine and a glass pipe with burn marks and white residue.
Appellant exhibited symptoms of being under the influence of methamphetamine and submitted to a urine test which tested positive for methamphetamine and amphetamine.
At the time of his arrest, appellant’s pickup truck was parked in the driver’s apartment complex lot. Appellant consented to a search of his truck. In appellant’s truck, deputies found one-inch-by-one-inch clear ziplock baggies, a loaded .45 caliber handgun under the seat and wrapped in a cloth, and a bag containing 10, .45 caliber automatic rounds of ammunition. The handgun was stolen in 2006 from a City of Los Banos police officer’s parked department vehicle.
DISCUSSION
Abuse of Discretion In Sentencing
Appellant contends the trial court abused its discretion in sentencing him to the middle term of two years. Appellant does not challenge the court’s denial of probation.
It is well-established that sentencing courts have wide discretion in weighing aggravating and mitigating factors, and the court’s decision must be affirmed on appeal unless there is a clear showing that the sentence choice was arbitrary or irrational. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) Although a trial court’s discretion is broad, it must exercise its sentencing discretion in a manner that is “consistent with the letter and spirit of the law, and that is based on an individualized consideration of the offense, the offender, and public interest.” (People v. Sandoval (2007) 41 Cal.4th 825, 847 (internal quotation marks omitted).) “The 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.” (People v. Superior Court (DU) (1992) 5 Cal.App.4th 822, 831.)
In this case, the sentencing court is bound by Penal Code, section 1170, subdivision (b), which provides in pertinent parts that:
All further section citations are to the Penal Code, unless otherwise stated.
“(b) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.… In determining the appropriate term, the court may consider the record in the case, the probation officer’s report, …, and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. A term of imprisonment shall not be specified if imposition of sentence is suspended.
“(c) The court shall state the reasons for its sentence choice on the record at the time of sentencing.” (§ 1170, Stats. 2007, c.3 (S.B.40)§ 2, eff. Mar. 30, 2007).)
At the sentencing hearing, after hearing arguments on whether appellant was a danger to society because he has an outstanding warrant, the court discussed its reasoning underlying the imposition of a mid-term sentence:
“[I]n reviewing the [probation] report the Court did consider this and did, in fact, consider granting probation taking into consideration the lack of the prior record, taking into consideration that he’s a family man, taking into consideration that he’s here in this country legally working hard, .…
“However, the Court also took into consideration specifically 16.3 grams of methamphetamine. While in other counties that may not be a lot, in this county that generally is considered a lot as well as a .45 caliber firearm that was . . . in the truck that was loaded and it happened to be stolen from another [sic] Los Banos Police Department.
“So taking those into consideration I find that the defendant is not a good candidate for probation in this matter. The court’s going to deny probation; sentence the defendant to the mid-term of two years, which is appropriate, to the California State Prison.”
The probation report had concluded that a middle term of two years was appropriate because “the aggravating and mitigating factors [were] in rough balance.” The probation report found that the lone aggravating factor was appellant’s convictions were increasing in seriousness, and two mitigating factors were appellant’s minimal prior record and that he voluntarily acknowledged wrongdoing prior to arrest or at an early stage of the criminal process.
From the record, we conclude that the reason the court selected the middle term as the appropriate term was because the probation report concluded that the aggravating and mitigating circumstances were “in rough balance.” We caution that section 1170 requires a sentencing court to explain the reason why a particular term was chosen in the best interests of justice. Thus, a sentencing court should explain its reasoning for selecting the middle term and not merely conclude that a particular term is appropriate. We also note that the middle term is no longer the presumptive term. (§ 1170, subd. (b) [“[T]he choice of the appropriate term shall rest within the sound discretion of the court.”]) However, a sentencing court may determine that the middle term is an appropriate sentence where mitigating factors and aggravating factors are in rough balance if the same sentencing court would grant a lower or upper term where the mitigating and aggravating terms are not in rough balance. Here, the sentencing court could conclude that the mitigating circumstances that appellant had a minimal prior record and that he acknowledged wrongdoing early in the instant case were balanced by the lone aggravating circumstance that appellant’s convictions were increasing in seriousness. (See People v. Zamora (1991) 230 Cal.App.3d 1627, 1637 [“One aggravating factor can outweigh several mitigating circumstances.”]) This is a conclusion that is not outside the bounds of reason, and thus there was no abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 371.)
DISPOSITION
The judgment is affirmed.