Opinion
C086114
10-02-2019
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL BELMONTE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 17CF04087, 17CF04042)
After defendant Miguel Belmonte pleaded no contest to stalking and resisting an executive officer, the trial court found him statutorily ineligible for probation and found no unusual circumstances warranting an exception existed. Defendant was sentenced to a four-year eight-month prison term. On appeal, defendant contends the trial court abused its discretion in finding no unusual circumstances. We will affirm.
BACKGROUND
The parties stipulated to a factual basis from the probation report. The facts are taken from that report.
In violation of a restraining order, defendant showed up at the victim's home and at one point banged on the door. He was arrested and jailed.
Three days later, correctional officers responded to a verbal altercation between defendant and six other inmates. Defendant ignored officers' commands and physically resisted when he was restrained. Later, while being walked down the stairs, defendant caused an officer to lose balance by "latch[ing] onto" the handrail.
When defendant was taken to an interview room, he broke a window, ignored officers' orders, and took a "bladed stance" against an officer. Later, when an officer was removing defendant's restrains in the sobering cell, defendant grabbed the officer's hand and refused orders to let go.
Defendant pleaded no contest to stalking (Pen. Code, § 646.9, subd. (b)) and resisting an executive officer (§ 69, subd. (a)). He also admitted suffering a prior strike. As part of his plea, his prior strike was considered only for purposes of state prison housing, and the remaining counts were dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754.
Undesignated statutory references are to the Penal Code.
At sentencing, the trial court noted that, as per section 1203, subdivision (e)(4), defendant was statutorily ineligible for probation unless an unusual case, overcoming the presumption of ineligibility, existed. The court noted it had reviewed the criteria for finding unusual circumstances, set forth in California Rules of Court, rule 4.413, and found defendant failed to satisfy any of the criteria and therefore denied probation.
Further rule references are to the California Rules of Court.
The court then explained that had defendant not been statutorily ineligible, probation would still be denied and listed several factors from rule 4.414, which provides criteria for determining whether to grant probation. The trial court then imposed the upper term of four years for stalking along with an eight-month term (one-third the middle) for resisting an executive officer.
DISCUSSION
On appeal, defendant contends the trial court abused its discretion in finding no unusual circumstances, for purposes of granting probation. He argues the trial court failed to consider relevant and applicable parts of rule 4.413. He reasons that while the trial court considered rule 4.414 and the probation report included a copy of rule 4.414, the probation report did not provide a copy of rule 4.413. He maintains the trial court failed to consider factors of unusual circumstances such as when the current offenses were committed defendant was acting under duress resulting from alcohol and drug use, he has no recent record of committing violent crimes, and his current offenses were substantially less serious than the circumstances giving rise to his probation ineligibility. We disagree.
The probation report did, however, state that under "Rule of Court 4.413, this case would not be considered unusual."
Section 1203, subdivision (e)(4) renders any person with two or more felonies ineligible for probation, "[e]xcept in unusual cases in which the interests of justice would best be served if the person is granted probation." We review a trial court's finding that no unusual circumstances exist for abuse of discretion. (People v. Stuart (2007) 156 Cal.App.4th 165, 178.) A defendant bears the burden of clearly showing the sentencing decision was irrational or arbitrary. (People v. Cazares (1987) 190 Cal.App.3d 833, 837.)
Factors for determining unusual circumstances include: "The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence," and "[t]he current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense." (Rule 4.413 (c)(1)(B), (c)(2)(A).) --------
Here, defendant's challenge is forfeited. The trial court expressly stated it had considered the criteria in rule 4.413 before finding no unusual circumstances applied. Had defendant desired a more detailed statement of reasons, it was incumbent upon him to request it. The failure to do so, forfeits the challenge on appeal. (See In re Sheena K. (2007) 40 Cal.4th 875, 881 ["As a general rule neither party may initiate on appeal a claim that the trial court failed to make or articulate a ' "discretionary sentencing choice[]" ' "]; People v. Scott (1994) 9 Cal.4th 331, 353 ["Routine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention"].)
Defendant, undeterred, maintains he did object and points to his counsel's statement at sentencing, after the trial court asked if he wished to be heard: "Just on behalf of [defendant]. He just wants the Court and the Victim to know how sorry he is. And that he wants the Court to know that he was under the—now he understands—the mistaken belief that despite the restraining orders, he believed that the victim wanted him to be with her. He was living with her. She put money on his books while he was in jail. And she—she invited him in. And he now knows that it was he who was the [restrained] person and he should have said no. But that, at the time, he just was not thinking clearly. He wants to express his apologies and his remorse to both the victim and the Court." Defendant maintains that statement "directly called the court's attention to the fact that [defendant] did not understand the nature, purpose, and effect of the restraining order," and thus constituted an objection to the finding of unusual circumstances. The point is not well taken.
Defense counsel's statement in no way constitutes an objection sufficient to preserve the issue on appeal. And even if the challenge were somehow preserved, defendant's claim that he acted under duress of alcohol and drugs, and his claims regarding his criminal history are insufficient to render the trial court's finding irrational or arbitrary.
DISPOSITION
The judgment is affirmed.
/s/_________
BLEASE, Acting P. J. We concur: /s/_________
MAURO, J. /s/_________
DUARTE, J.