Opinion
C085056
06-18-2018
THE PEOPLE, Plaintiff and Respondent, v. EMMANUEL DAVID BROWN, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 16CF05273)
Defendant Emmanuel David Brown appeals following his sentence to serve the maximum prison term possible under his plea agreement. He contends the trial court erred by improperly relying on multiple redundant aggravating factors while disregarding a key mitigating factor. He also contends that if the contention is forfeited by trial counsel's failure to object to the court's proposed sentence, he received ineffective assistance of counsel. We conclude the trial court did not err and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Charged with carrying a concealed dirk or dagger (Pen. Code, § 21310) and having incurred a prior strike (§§ 667, subds. (b)-(i), 1170.12) and a prior prison term (§ 667.5, subd. (b)), defendant entered a plea of no contest and admitted the strike, which was dismissed pursuant to section 1385, subdivision (c), as part of the plea; the prior prison term enhancement was dismissed with a Harvey waiver. The agreement stipulated a maximum state prison sentence of three years, the upper term for the offense.
Undesignated statutory references are to the Penal Code.
People v. Harvey (1979) 25 Cal.3d 754.
According to the probation report, citing to the Oroville Police Department report, the facts of defendant's offense were as follows: "On November 1, 2016, at approximately 9:12 p.m., officers were dispatched to the AM/PM store on Oro Dam Boulevard to investigate a report of an argument in the parking lot. [¶] Upon arrival, officers observed the defendant . . . arguing in the parking lot with [A.G.] The defendant and [A.G.] indicated their argument was only verbal. [¶] The defendant claimed he was on parole. He admitted he possessed a knife, an open bottle of vodka, and a glass marijuana smoking device. Officers [detected] the odor of an alcoholic beverage emitting from the defendant's person. [¶] Officers conducted a search of the defendant's person and located a 3.5 inch fixed blade knife in the defendant's left front pocket. . . . The defendant was arrested for a violation of § 21301 PC, Carrying a Dirk or Dagger."
When entering the plea in open court, defendant stated: "The only reason why I pleaded to this is -- signed all of this -- is for three years on felony probation." However, after the trial court stated it was not guaranteeing probation, and defense counsel stated he had explained the terms of the plea agreement to defendant and defendant seemed to understand them at the time, defendant proceeded to enter his no contest plea.
After receiving the probation report that recommended the upper prison term sentence, the trial court at sentencing announced its intention to impose that term, noting defendant's maximum exposure at the time of his plea was nine years eight months. Defense counsel argued for suspending sentence and granting three years' probation, asserting that defendant, an alcoholic, had been accepted into the Salvation Army substance abuse treatment program, and was willing to waive presentence custody credits. The trial court stated defendant was statutorily ineligible for probation unless this was an unusual case and the court did not find it to be such, but even if defendant were not statutorily ineligible, probation would have been denied for the following reasons: "Prior record of criminal conduct indicates a pattern of regular criminal conduct. Prior performance on probation was unsuccessful. [¶] The court has reviewed the circumstances in aggravation and those in mitigation. And I find the circumstances in aggravation outweigh those in mitigation[,] specifically[,] your prior convictions as an adult are numerous. You served a prior prison term, you have a prior strike. You were on probation at the time the crime was committed. Your prior performance on probation was unsatisfactory as I noted. You have . . . six prior felonies, ten prior misdemeanors." The only circumstance in mitigation found by the court was that defendant had "expressed a willingness to seek residential treatment and comply with terms and conditions of probation."
The trial court thereupon imposed the three-year prison sentence, the upper term for defendant's offense.
DISCUSSION
Defendant contends the trial court erred by "repeatedly narrowing its focus to [defendant]'s prior criminal record." He asserts that "[o]f the six aggravating factors [recited by the court], four merely constitute repeated aspects" of that record. Moreover, the court ignored "an important mitigating factor": defendant voluntarily acknowledged wrongdoing before arrest or at an early stage of the criminal process. (Cal. Rules of Court, rule 4.423(b)(3).) Defendant's argument lacks merit.
Undesignated references to rules are to the California Rules of Court. --------
When making sentencing decisions, trial courts have wide discretion in weighing aggravating and mitigating factors. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582 (Avalos).) A single valid aggravating factor justifies the upper term. (People v. Black (2007) 41 Cal.4th 799, 815.) The court may rely on any aggravating circumstances reasonably related to its sentencing decision (People v. Sandoval (2007) 41 Cal.4th 825, 848) and need not explain its reasons for rejecting alleged mitigating circumstances (Avalos, at p. 1583). We review the court's sentencing choices for abuse of discretion. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
Here, the probation report stated: "In aggravation, the defendant has sustained numerous prior convictions. He has served a prior prison term. He has not performed well on past grants of probation, and he was on probation at the time he committed this offense. In mitigation, the defendant did not sustain any documented violations of parole." This list includes several aggravating factors enumerated in rule 4.421: rule 4.421(b)(2) (prior convictions numerous), rule 4.421(b)(3) (prior prison term), rule 4.421(b)(4) (defendant on probation when he committed the offense), and rule 4.421(b)(5) (prior performance on probation unsatisfactory). Defendant's assertion they amount to the same thing fails: the Rules of Court set them out severally, and defendant cites no authority holding a sentencing court may not cite all separately listed factors that apply. Nor does he attempt to show any of these factors are invalid as applied to him.
Defendant's claim that the trial court did not consider the mitigating factor of his early acknowledgment of wrongdoing also fails. As noted, a sentencing court need not explain its reasons for rejecting any alleged mitigating factor. (Avalos, supra, 47 Cal.App.4th at p. 1583.) In any event, defense counsel properly did not ask the court to consider this alleged mitigating factor, because it did not apply. Defendant admitted he possessed a knife after the officers detained him, but he could hardly have denied that fact once they searched him and found the knife. And the probation report makes clear he did not admit wrongdoing: even after entering his plea he maintained the knife was "legal" and not concealed, and he had not done anything wrong.
Lastly, defense counsel was not ineffective in failing to make the arguments defendant raises now. Since counsel could not have contested the validity of the aggravating factors the trial court relied on, and the alleged mitigating factor defendant cites did not exist, counsel's argument that defendant's admission to a treatment program justified probation was the best strategy available on these facts.
DISPOSITION
The judgment is affirmed.
/s/_________, J.
HOCH We concur: /s/_________
RAYE, P. J. /s/_________
BLEASE, J.