Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. LP31545.01
SIMONS, J.
Mel A. Penell (appellant) appeals following a guilty plea to five counts of grand theft under Penal Code section 487, subdivision (a). The court denied probation and sentenced appellant to four years eight months in prison. He contends the trial court erred in denying probation, because the court based its denial on his failure to pay restitution. We disagree and affirm.
Background
In September 2002, appellant was charged with 20 counts of grand theft under Penal Code section 487, subdivision (a), based on his failure to pay contractors for labor and services rendered. In July 2005, appellant entered a guilty plea to five counts of grand theft, and the remaining counts were dismissed. Appellant stated that he understood there had been no promises made as to the possible consequences of his plea, and he could receive a prison sentence of up to five years and eight months. Although the remaining counts were dismissed, appellant agreed he was financially responsible for all 20 counts. Because appellant could not pay restitution unless he sold his house, the parties agreed to continue the matter for several months to give appellant time to sell his property. Sentencing was set for October 2005.
At the October sentencing hearing, the court initially indicated its inclination to follow the probation report’s recommendation for a midterm prison sentence. Defense counsel urged the court to grant probation, because appellant had listed his home for sale, had physical and mental problems that made him unsuitable for prison, and his wife suffered from a disability and needed him at home. Defense counsel presented testimony from appellant’s real estate agent that appellant had listed his property for $399,000 in July, but there had been no offers on the home. At the close of the hearing, rather than proceeding with sentencing, the court ordered a diagnostic study of appellant from the Department of Corrections and Rehabilitation pursuant to Penal Code section 1203.3.
After the diagnostic study had been completed, the parties returned for sentencing in March 2006. Defense counsel again urged the court to grant probation, arguing that appellant suffered from bipolar disorder and lacked criminal intent. The prosecutor argued for a prison term, stating that appellant had intentionally defrauded 22 contractors out of $95,000.
The court denied probation, sentenced appellant to four years eight months in prison, and ordered him to pay restitution. The court stated that although appellant’s crimes were not violent, the offenses were so egregious that both the probation officer’s report and the diagnostic study had recommended a prison term. The court found a number of facts that weighed against granting probation: the crime had 22 victims and occurred over a 15-month period; the degree of monetary loss was great ($95,000); appellant was an active participant in the crime; the crime demonstrated a degree of planning and professionalism; appellant had failed to appear for a prior hearing and had to be extradited back to California; appellant had not maintained consistent employment despite a high level of education; his sole source of income was his wife’s social security disability; and the likelihood that appellant would be a danger to others’ property if not imprisoned was substantial. The court also found several facts weighing in favor of granting probation: appellant did not have an extensive criminal background; his prior probation record was good and he was not on probation at the time of the offense; the imprisonment would likely have a substantial adverse effect on appellant and his dependents; and collateral consequences of a felony conviction would likely have a substantial adverse effect on appellant’s life. Weighing these criteria, the court determined that a prison term was appropriate.
The probation officer’s report recommended a prison term based on its findings that appellant had not maintained consistent employment despite his high level of education; the present offense was “egregious” and involved 22 victims and significant restitution; appellant had had ample time to begin making restitution; and appellant did not take full responsibility for his behavior. The California Department of Corrections’ diagnostic study likewise recommended a prison term, based on findings that appellant did not accept responsibility for his actions; his actions appeared calculated and professional; he had little work history and no plans to obtain employment; and he felt little remorse for his actions. The diagnostic study concluded that appellant’s “criminal behavior has escalated to a point where he presents a threat to society and any continued efforts at resolving his behavior by local community programs are unwarranted.”
In April 2006, appellant filed a timely notice of appeal.
Discussion
Appellant contends that the trial court refused to consider probation because he had not paid restitution, and the prison sentence imposed constitutes an abuse of discretion and a denial of his federal rights to due process and equal protection. Respondent argues that the court did not deny probation based on appellant’s inability to pay restitution, but instead properly exercised its discretion and denied probation for the reasons it cited at the March sentencing hearing.
“The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation and, if so, under what conditions.” (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) Thus, a denial or grant of probation “ ‘will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner.’ [Citation.]” (People v. Downey (2000) 82 Cal.App.4th 899, 909.) In granting probation, the court’s primary considerations are “[t]he safety of the public, which shall be a primary goal through the enforcement of court-ordered conditions of probation; the nature of the offense; the interests of justice, including punishment, reintegration of the offender into the community, and enforcement of conditions of probation; the loss to the victim; and the needs of the defendant.” (Pen. Code, § 1202.7.)
Appellant’s argument fails because it rests on a false premise: the trial court did not deny probation based on appellant’s failure to pay restitution. At the March sentencing hearing, the court stated that it had read the diagnostic study and the probation report, both of which recommended a prison term. The court then listed a number of factors that weighed against probation, including the number of victims, the degree of monetary loss, appellant’s active participation in the crime, appellant’s failure to appear for a prior hearing and his extradition back to California; appellant’s lack of consistent employment despite a high level of education, and the substantial likelihood that appellant would be a danger to others’ property if not imprisoned. The court concluded that these facts outweighed the facts in favor of probation, which included appellant’s limited criminal background and good prior probation record, and the substantial adverse effect imprisonment would have on appellant and his dependents. The court considered the probation report and diagnostic study and weighed the relevant factors.
There is no evidence in the record that, as appellant contends, the court based its denial of probation on appellant’s failure to pay restitution. Appellant concedes that the plea agreement contained no provision guaranteeing him probation if he paid restitution. On the contrary, when appellant entered his plea, he stated that he understood there had been no promises made as to the consequences of his plea, and he could be sentenced to a prison term of up to five years and eight months. Appellant argues that the guarantee of probation in return for restitution was an “implicit part of the plea agreement,” pointing to a statement by the prosecutor that the judge had “indicated that he would be inclined to put the defendant on probation if the creditors are paid off,” and a statement by the judge that the prosecutor had suggested “there was an agreement or at least an indication that if restitution were made this would—the [c]ourt would lean towards probation.” However, these statements at most demonstrate that the court was more inclined to grant probation if appellant paid restitution; they do not show that the court denied probation solely because of appellant’s failure to pay restitution. In fact, on October 21, 2005, when appellant’s failure to pay restitution was evident, the court demonstrated it was still considering probation by ordering a diagnostic study. Moreover, the record of the March sentencing hearing flatly contradicts appellant’s argument.
Because we conclude the trial court considered probation and declined to impose it for the reasons stated, we reject appellant’s challenge to the sentence imposed.
Disposition
The judgment is affirmed.
We concur: JONES, P. J., NEEDHAM, J.