Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR094143
Bruiniers, J.
Appellant Frank Gavin Paratore was charged with two counts of identity theft with intent to defraud (Pen. Code, § 530.5, subd. (c)(1)) and 16 counts of identity theft for purposes of obtaining credit (§ 530.5, subd. (a)). On January 11, 2010, pursuant to a negotiated plea agreement, Paratore pled guilty to two counts of identity theft for purposes of obtaining credit (§ 530.5, subd. (a)), with a Harvey waiver as to the remaining counts, allowing the court to consider the dismissed counts in sentencing. The plea was “open, ” with no promises made as to the sentence to be imposed. After referral to the Department of Corrections and Rehabilitation for a 90-day diagnostic evaluation pursuant to section 1203.03, Paratore was sentenced to state prison for the midterm of two years on one count, and a consecutive eight-month term on the second. He received presentence credits for time served totaling 433 days. Victim restitution in the amount of $5,822 was ordered.
All further code references are to the Penal Code unless otherwise indicated.
People v. Harvey (1979) 25 Cal.3d 754.
Paratore filed a timely notice of appeal, challenging only his sentence. Assigned counsel has submitted a Wende brief, certifying that counsel has been unable to identify any issues for appellate review. Counsel has also submitted a declaration confirming that Paratore has been advised of his right to personally file a supplemental brief raising any points which he wishes to call to the court’s attention. No supplemental brief has been submitted. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109–110.) We find no arguable issues and therefore affirm.
People v. Wende (1979) 25 Cal.3d 436.
BACKGROUND
Between April 2008 and May 2009, Paratore used tax identification numbers obtained from two businesses to establish, or attempt to establish, 18 fraudulent accounts with various commercial vendors, including Home Depot, Target, FedEx Kinko’s, and wireless telephone providers Verizon and Sprint.
Prior to sentencing, Paratore’s counsel submitted a statement in mitigation, requesting probation and attaching a psychiatric evaluation and several supportive letters. Counsel attributed Paratore’s offenses to financial pressures arising from a gambling addiction. As noted above, the court referred Paratore to the Department of Corrections and Rehabilitation for a diagnostic evaluation. The diagnostic report recommended imposition of a prison term. The court also referred Paratore for a presentence probation report. The probation department also recommended imposition of a term of imprisonment, based in part on the criminal sophistication exhibited, the significant impact on the victims, and the potential threat Paratore presented to the community.
The report is not included within the clerk’s transcript and is not part of the record. Appellate counsel attaches a copy to his opening brief, without any request to augment the record. The report is, however, discussed in the transcript of the sentencing hearing. The report apparently included a dissenting evaluation from a prison psychologist opining that Paratore was amenable to treatment.
DISCUSSION
The trial court reviewed and considered the prison diagnostic report and the presentence probation report (both of which recommended a prison sentence), considered the mitigation statement presented by Paratore, including supportive letters, heard victim impact testimony, and considered argument of counsel. The court considered and rejected probation, considering the criminal sophistication involved, the significant financial loss, and the multiple victims. (Cal. Rules of Court, rule 4.414.) “Probation is not a matter of right but an act of clemency, the granting and revocation of which are entirely within the sound discretion of the trial court.” (People v. Pinon (1973) 35 Cal.App.3d 120, 123.)
The court considered the aggravating and mitigating circumstances both in assessing the appropriate prison term and in deciding whether to impose concurrent or consecutive terms. (Cal. Rules of Court, rules 4.410, 4.425.) “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.” (§ 1170, subd. (b); see Cal. Rules of Court, rule 4.420.)
No arguable issues are presented as to the fines and penalties imposed, or as to the custody credits Paratore received. Paratore’s counsel agreed with the court’s calculation of credits. There is a statutory mandate for victim restitution. (§ 1202.4, subds. (f)(3) & (g).) Victims have “a right to restitution based on the full amount of their losses[.]” (People v. Birkett (1999) 21 Cal.4th 226, 229; see § 1202.4, subd. (f)(2).) Paratore did not contest the restitution amount ordered.
We find no evidence that the court abused its sentencing discretion, and therefore no arguable issues are presented.
DISPOSITION
The judgment is affirmed.
We concur: Simons, Acting P. J., Needham, J.