Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 04F359, 06F5896, 07F2183
HULL, J.
In April 2004, defendant Spencer Lamar Bornes pleaded no contest to felony vandalism (Pen. Code, § 594, subd. (b)(1)), in Shasta County Superior Court case No. 04F359. The charge arose out of an incident in which he attacked his half-sister’s house with a sledgehammer and damaged her truck with an unknown object. The court suspended imposition of sentence and placed defendant on probation.
About two years later, while searching another person’s home, officers found defendant in possession of methamphetamine, psilocybin mushrooms, narcotics’ paraphernalia, and $280 cash. This led to the filing of case No. 06F5896. As to that filing, defendant ultimately pleaded no contest to possession of methamphetamine for sale (Health & Saf. Code, § 11378) and admitted that he had violated his probation in case No. 04F359. The court reinstated probation in case No. 04F359 and placed defendant on probation in case No. 06F5896.
During a probation search of defendant and his residence in 2007, defendant was found to possess 38 hydrocodone tablets in plastic baggies plus assorted drug paraphernalia. This led to the filing of the current charges in a case designated as 07F2183. Defendant pleaded guilty to possession of hydrocodone (Health & Saf. Code, § 11350) in that case and admitted violating probation in the two previous cases. The court sentenced defendant to a term of four years four months: a three year upper term for possession of hydrocodone in case No. 07F2183 and consecutive eight-month terms for possession of methamphetamine for sale in case No. 06F6896 and felony vandalism in case No. 04F359.
On appeal, defendant contends the sentence imposed by the court was based on improper considerations and mistaken facts, was not an exercise of the court’s discretion, and violates due process by punishing defendant for having previously exercised his right to jury trial. We reject these contentions and affirm the judgment.
Facts and Proceedings
In case No. 07F2183, defendant was scheduled to attend a settlement conference on May 21, 2007, but failed to attend because he had been told to appear on May 24. The conference was rescheduled to May 24 before Judge Ruggiero, and at the conference the parties informed the court the offer was for “[t]wo years concurrent on all three felonies.” Judge Ruggiero “rejected” the offer, which the prosecutor then withdrew. The court set a trial readiness conference for June 8 and a June 12 trial date. The minute order for the conference indicates the prosecutor made a settlement offer of “2 yrs - all 3 cases,” and a check mark on the box stating: “The defendant rejected the offer.”
Thereafter, defense counsel and the prosecutor, Deputy District Attorney Omura, arrived at a new proposed settlement through an exchange of e-mails. Under the proposed disposition, defendant would plead guilty with a sentence lid of two years eight months, composed of “mid-term + 8 mos. consecutive on new case.”
At the June 8 readiness conference, Deputy District Attorney Lowery, appearing in lieu of Deputy Omura, and defendant’s attorney told Judge Ruggiero of the new proposed disposition. The proposed agreement was that defendant would plead to possession of hydrocodone in case No. 07F2183 and admit violating his probation in the other two cases with an aggregate sentence lid of two years eight months. Judge Ruggiero again rejected the proposed disposition, concluding: “The settlement conference was a stipulated two years. He’s on two grants of felony probation. He wants to enter the plea and admit the petitions and leave it open, that’s fine, but that’s it.”
Defense counsel asked if defendant’s maximum exposure under an open plea would be three years four months. Judge Ruggiero correctly replied defendant’s maximum exposure would be four years four months. After conferring with defendant, defense counsel told the court his client would go to trial.
Trial was scheduled to begin before Judge Halpin on June 12, 2007. Deputy Lowery now represented the People. Defense counsel informed the court that defendant decided to change his plea in case No. 07F2183 after the People said they intended to dismiss the case and refile it with additional charges. The defense and the People agreed that defendant would now plead guilty to the felony in case No. 07F2183 and admit violating probation in the other two cases. The misdemeanor charge in case No. 07F2183 would be dismissed with a Harvey (People v. Harvey (1979) 25 Cal.3d 754) waiver.
Judge Halpin asked why this had not been done on “Friday,” the day of the trial readiness conference. Defense counsel replied: “Friday we had an agreement that had a two-year, eight-month lid, and Judge Ruggiero rejected that agreement and said he either needs to plead open to the charge or go to trial.” Counsel continued, telling the court defendant then decided to go to trial as there was no “downside” under the open plea which Judge Ruggiero would accept, but now that the prosecution was considering refiling with additional charges defendant changed his mind and wanted to enter an open plea before more charges were added.
Judge Halpin asked Deputy Lowery why the People had not made their views known at the trial readiness conference. Deputy Lowery responded that after taking over the case and working on the matter during the weekend between the conference and the trial date, he determined it would be better charged as “a sales case.” The prosecutor informed defense counsel at 7:56 a.m. on the morning of trial, which was as early as he possibly could, and the parties did not reach an agreement until just before coming to court.
When asked by Judge Halpin why he did not dismiss the charges and refile, Deputy Lowery responded he would then have to add a charge under Health and Safety Code section 11370.12, “which would increase defendant’s exposure by another three years.” Deputy Lowery concluded doing so was not “necessarily fair to the defendant, based on the compact circumstance that we’ve been dealing with for the last 72 hours.” He, therefore accepted the current agreement, which Deputy Lowery concluded was “more of a just outcome” under the circumstances.
Judge Halpin expressed a desire to talk to Judge Ruggiero about the case. Deputy Lowery responded: “But, Your Honor, I mean, as far as the rules are concerned--” and Judge Halpin replied “I know. I don’t think I can do anything about it.” After the prosecutor stated it was “just a plea to the sheet,” Judge Halpin said: “And I guess both of you know it’s really very, very inefficient administration of justice when these events occur between Friday and Tuesday, and two or three weeks ago that happened with four out of four cases.”
After more discussion over why the parties settled so late, Deputy Lowery stated the People were prepared to dismiss the misdemeanor charge right now to give “some benefit here based on the circumstances.” Judge Halpin replied, “[w]ell, it doesn’t appear to me that this is all the defendant’s fault, if fault’s the right word.”
The court then took defendant’s guilty plea and admissions of probation violations. Judge Halpin continued to express his displeasure with the late settlement, which defense counsel explained was due in part to defendant missing the initial settlement conference because he had been given the wrong day to appear.
Judge Halpin conducted the sentencing hearing on August 9, 2007. During argument, he asked: “I noticed there was an offer here. It was for two years; is that correct?” Deputy Omura, representing the People again, agreed, while defense counsel informed the court that the offer was a lid, which defendant was prepared to accept, but it had been rejected by Judge Ruggiero.
The court asked whether Judge Ruggiero did not accept the settlement because it was too late or for some other reason. Defense counsel replied there had been no settlement conference because defendant had been given the wrong court date, and therefore the parties came up with the proposed settlement at the trial readiness conference. Deputy Omura recalled the rescheduled settlement conference, but mistakenly informed the court defendant rejected a two-year offer at the time. He also told the court defendant confirmed the trial at the trial readiness conference.
Judge Halpin explained what bothered him about the case was that the local procedure was offers were to be made up until the trial readiness conference, which have to be accepted by then “or it is withdrawn and the defendant has to either plead to the sheet or the District Attorney has to dismiss the case, if anything occurs between Friday and Tuesday.” He thought something went wrong at the trial readiness conference which caused Judge Ruggiero to be unwilling to accept the plea “which appears to me to be a little unusual.”
Deputy Omura told Judge Halpin he might have been mistaken in saying defendant rejected an offer of two years. Defense counsel eventually informed the court that the parties entered into an agreement at the trial readiness conference which was rejected by Judge Ruggiero.
Judge Halpin replied: “I hate to be a nitpicker, but I like to do these things correctly. I would be inclined to follow the probation report recommendation if, in fact, the defendant turned down an offer at the trial readiness conference. But if, in fact, that did not happen and that the offer was turned down because of someone else’s problem not his, I would be inclined to go with the offer because when I read the report it did seem to me that the probation recommendation was on the high side. I think I would have followed it primarily because I don’t think the defendant has been cooperating worth a damn. I don’t know how old he is, 57, I guess from the report. I think he’s had adequate opportunity to get himself straightened up, but I am disturbed by this.”
Judge Halpin continued: “I try to follow the court’s policy. I think if we keep a policy like that we have to do it correctly; both when it happens to favor the defendant and when it happens to favor the prosecution. I don’t think there should anybody change [sic] and I think Judge Ruggiero would probably have said something on the record as to why he wouldn’t accept the plea.” Judge Halpin then continued sentencing for one day so he could read the transcript of the trial readiness conference and determine why the plea agreement had been rejected.
At next day’s sentencing hearing, defense counsel accurately summarized the plea negotiations leading up to the trial readiness conference. Defense counsel and Deputy Omura were given transcripts of the trial readiness conference and acknowledged reading them.
Judge Halpin noted the transcript differed from the parties’ description of the conference at the previous day’s sentencing hearing. The transcript “kind of settled my problem” for Judge Halpin as it showed Judge Ruggiero rejected the proposed disposition “because he understood that what was on the table was a two-year agreed term” noting “there is a reference to a two-year agreed term in one of the earlier--some of the earlier paperwork.”
The court continued: “I think he had a perfect right to do that, and I think if the defendant didn’t want to accept it, that’s kind of his problem. I think he had a chance to accept it at the pretrial readiness conference. [¶] It’s true, Judge Ruggiero upped the ante a little bit, because he said he wanted an open plea, but I have to think that if, in fact, the defendant had been willing to go along with the original proposal, which was a two-year agreed term, that Judge Ruggiero would have probably not gone along with it, because it appeared to me that he was concerned about the possibility of probation, which apparently he didn’t want to have happen here.”
Judge Halpin concluded: “And so, on balance it appears to me that the defendant is the person who has to bear the responsibility for this having--not having been disposed of prior to the time it came over here.” He then proceeded to sentencing indicating the probation department’s recommendation was “a little on the heavy side, but, on the other hand, it’s clear to me that the defendant, even at the time this probation report was written, hasn’t really got it.”
Continuing, Judge Halpin stated: “And I don’t see why we should take a chance on giving him any more opportunity. I think he’s had more than his share, and I agree with the probation report with respect to the circumstances in aggravation, which is that the defendant was on probation or parole when the crime was committed and his prior performance was unsatisfactory. I think there’s not much doubt about that, and I don’t think they found any circumstances in mitigation, so I’m not going to find any either.”
The court denied probation following the recommendation of the probation report. Judge Halpin stated: “This gentleman is older than most defendants, and there’s no real reason why he shouldn’t have been able to get control of his life before now.” Therefore, agreeing with the recommendation of the probation department, Judge Halpin sentenced defendant to an upper term of three years in case No. 07F2183 and consecutive eight month terms in the other two cases for a total term of four years four months. Defendant never contended that the court relied on improper considerations when pronouncing sentence. The Attorney General specifically disclaims any argument based on forfeiture.
Discussion
I
The Sentence
Defendant contends his sentence is a product of several errors. He argues that Judge Halpin’s statement that defendant bears responsibility for the case not settling before trial was inaccurate. This inaccurate premise, defendant contends, led Judge Halpin to punish defendant by imposing the maximum sentence as recommended by the probation report rather than the two-year eight-month term which defendant claims the parties and Judge Halpin thought was the appropriate sentence. This, he asserts, constitutes a failure to exercise discretion by the court, resulting in an invalid sentence. Defendant concludes we should either modify the sentence to the two-year eight-month term or vacate the sentence and remand for a new sentencing hearing.
“‘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.’ [Citation.] Concomitantly, ‘[a] decision will not be reversed merely because reasonable people might disagree. “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.” [Citations.]’ [Citation.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
It is apparent that, in an effort to follow local court rules established to preserve judicial resources, Judge Halpin made some effort to assess “fault” for the late settlement of the matter before us. Fault is difficult to assess here. Defendant had been ready to enter into a negotiated plea the Friday before trial, but the trial court rejected the agreement. Judge Ruggiero said that, in order to avoid trial, defendant had to “enter the plea and admit the petitions and leave it open . . . but that’s it.” We read that to mean that Judge Ruggiero would only accept a guilty plea to the charges in case No. 07F2183 and an admission to the petitions alleging violations of probation in the other cases and that defendant would have to hope for the best at the time of sentencing. Defendant apparently understood the judge’s comments the same way and said he would go to trial given that, as his attorney said the following Tuesday, there was, as of the previous Friday, no “downside” to going to trial.
That changed between Friday and Tuesday after the prosecution threatened to dismiss the information and refile the case alleging more serious charges. When, at about 8:00 a.m. on the morning of trial, the prosecutor advised defendant’s attorney that that was what the prosecutor intended to do, defendant was then faced with a different situation and his offer to plead guilty changed accordingly. Thus, on the one hand, defendant was offering to enter into (nearly) the same agreement on Tuesday that he had rejected the previous Friday, but on the other, the prosecution had, in the meantime, threatened to change and increase the seriousness of the charges.
But, ultimately, whose “fault” the apparent violation of the local rules was, we do not find that an assessment of fault affected Judge Halpin’s sentencing decision.
Defendant’s alleged responsibility for the case failing to settle before trial would not have been a proper sentencing factor as it is not related to defendant or his crime. (See Cal. Rules of Court, rule 4.421.) Had the court used this arguable violation of the local rule to justify imposing the maximum term, then the sentence would have constituted an abuse of discretion. “[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.” (People v. Russel (1968) 69 Cal.2d 187, 195.)
It would have been equally improper for Judge Halpin simply to have decided to follow the recommendation of the probation report without exercising his own discretion in arriving at a proper sentence. “[A] failure to exercise a discretion required by law” is “the practical equivalent of an abuse of discretion.” (People v. Beasley (1970) 5 Cal.App.3d 617, 633.) Had the record reflected such matters, we would be required to reverse and remand the case for a new sentencing proceeding. But there is more to the record than that.
In pronouncing sentence, Judge Halpin relied on proper aggravating factors--defendant’s poor performance on probation and being on probation at the time of his crime--as his basis for imposing sentence he did. Although he followed the recommendation of the probation report, it is clear from the record Judge Halpin did not blindly defer to the probation department, but rather made his own determination that the recommended term, while high, was appropriate because defendant kept reoffending in spite of being given ample opportunities to avoid prison.
Judge Halpin’s discussions concerning responsibility for the late settlement of the case cannot be the basis for a finding of an abuse of discretion in the context of this sentence. We note Judge Halpin initially questioned whether “fault” was the appropriate term to use when assessing the reasons for the late proposed settlement of the case. His remarks, taken as a whole, show considerable concern over what he rightly wondered might have been a waste of court resources caused by the failure of the parties to settle the matter before the morning set for trial.
The record shows Judge Halpin imposed the sentence he thought was appropriate after fully considering the aggravating and mitigating circumstances. He, at one point, suggested the four-year four-month term recommended in the probation report was “on the high side,” but Judge Halpin then immediately qualified this statement by declaring “I think I would have followed it primarily because I don’t think defendant has been cooperating worth a damn.” Similarly, at the second sentencing hearing, he declared the probation department’s recommendation was “a little on the heavy side, but, on the other hand, it’s clear to me that the defendant, even at the time this probation report was written, hasn’t really got it.” Finally, in pronouncing sentence, Judge Halpin only recited valid aggravating factors. The sentence Judge Halpin imposed was based on his own evaluation of defendant’s recidivism rather than as punishment for defendant’s failure to settle earlier. This was not an abuse of discretion.
II
Due Process
Defendant also argues the sentence violated his due process rights by punishing him for exercising his right to go to trial.
A court may not punish defendant for exercising the right to jury trial. (In re Lewallen (1979) 23 Cal.3d 274, 278-279.) However, as we have already determined, the court did not impose the maximum sentence to punish defendant for his alleged failure to settle the case before trial. Accordingly, we reject defendant’s claim.
Disposition
The judgment is affirmed.
We concur: SIMS, Acting P.J., RAYE, J.