Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County Super. Ct. No. 04CM0139. Peter M. Schultz, Judge.
Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and David A. Lowe, Deputy Attorneys General, for Plaintiff and Respondent.
Before Vartabedian, Acting P.J., Wiseman, J., and Levy, J.
OPINION
FACTUAL AND PROCEDURAL HISTORIES
In January 2007, pursuant to a plea bargain, defendant Rosemary Castellanos entered a plea of no contest to the transportation and sale of methamphetamine, a violation of Health and Safety Code section 11379, subdivision (a). Pursuant to the terms of the plea bargain, a second count of selling a substance falsely represented to be a controlled substance was dismissed and the prosecution agreed not to pursue a felony failure-to-appear charge. Castellanos failed to appear twice during pretrial proceedings and remained a fugitive for an extended period of time.
While at a casino in January 2004, Castellanos sold a package represented to be methamphetamine to an undercover officer. The package, however, contained only plastic wrapped in tissue and the residue of methamphetamine. When first approached, Castellanos told the officers she had some drugs but did not want to part with them. Then, when approached a second time, Castellanos agreed to sell the package she represented as methamphetamine because she needed the money. She used a package she had obtained in a recent narcotic purchase.
At sentencing, the court considered Castellanos’s request for probation, but, based on her prior criminal record and poor performance on probation, the court found probation was not appropriate and sentenced Castellanos to state prison for the mid-term of three years.
DISCUSSION
Castellanos contends that the trial court abused its discretion in denying her request for probation. (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1530 [trial court enjoys broad discretion in determining whether criminal defendant is amenable for probation].) She claims the trial court was fixated on her two failures to appear and that she waited over a year to turn herself in for prosecution and completely disregarded several important mitigating facts in making its sentencing choice. She argues that because she is a 42-year-old woman and the mother of a new baby, the trial court should have found her ready to give up her destructive lifestyle and provided her the opportunity to do so by granting her probation instead of a prison term. She argues she did not get “caught” selling methamphetamine, but instead was importuned by the undercover officers “who were looking for a mark.”
This information was presented to the trial court, who read the probation report and considered the arguments of counsel before making its sentencing choice. We find no evidence in the record that the trial court failed to consider all the pertinent factors in making its decision. Defense counsel argued that Castellanos’s criminal history is merely a series of minor offenses, that her last felony offense was more than 10 years prior, and that the birth of her child was a “life-changing” event. The court was free to conclude that these facts did not outweigh the other considerations weighing against probation. (People v. Lai (2006) 138 Cal.App.4th 1227, 1256 [trial court has broad discretion in evaluating mitigating and aggravating factors in making probation determination]; People v. Lambeth (1980) 112 Cal.App.3d 495, 500 [whether a factor is mitigating in all circumstances of case is entrusted to discretion of trial court].) The trial court was not required to state its reasons for rejecting these factors in mitigation. (People v. Downey (2000) 82 Cal.App.4th 899, 919.) Castellanos also argues that her long-standing drug history is a significant factor in mitigation. However, the sentencing court may find that drug use did not significantly affect the defendant’s capacity to exercise judgment or, in the case of a long-standing addiction, that the defendant was at fault for failing to take steps to break the addiction. (In re Handa (1985) 166 Cal.App.3d 966, 973-974.)
The trial court was not fixated on the failures to appear. It noted that the probation report did not include any mention of the failures to appear and stated its belief that this is pertinent information that should have been covered. But, consideration of Castellanos’s failure to appear is appropriate in deciding whether to grant probation because it is directly connected to consideration of whether the defendant can be rehabilitated. (See State v. Ringley (Tenn.Crim.App. Nov. 6, 2000, No. E2000-00355-CCA-R3-CD) 2000 Tenn. Crim. App. Lexis 904 [failure to appear is indication of inability to be rehabilitated]; People v. Mattingly (1989) 180 Ill.App.3d 573, 580 [trial court identified first and foremost reason for denying probation as defendant’s failure to appear].)
The court continued its analysis and noted that, even if the failures to appear were excused (Castellanos claimed she had the baby and was incarcerated in Tulare County during this time frame), Castellanos’s criminal history rendered probation inappropriate. This is not an arbitrary conclusion. (People v. Ramirez, supra, 143 Cal.App.4th at p. 1530 [successful change to discretionary denial of probation requires showing of arbitrariness or capriciousness].) Castellanos had been given ample opportunity to see the error of her ways and live a lawful life. Each time she returned to criminal behavior. Five times in six years she was cited for driving with a suspended license. Although these are minor offenses, this history suggests an unwillingness to follow lawful direction. Her ability and willingness to comply with the terms of probation is a legitimate consideration in determining whether a prison term is appropriate. (Cal. Rules of Court, rule 4.414(b)(3).) While her only other felony conviction was in 1995 (possession of methamphetamine), Castellanos had suffered three misdemeanor convictions within two years of the current offense, for all of which she was granted probation. She failed to rehabilitate. Her prior performance on probation is a proper consideration. (Cal. Rules of Court, rule 4.414(b)(2).) As the prosecution argued, Castellanos’s criminal record suggests that she is not supervisable or amenable to any probation supervision.
Although there are other factors which mitigate in favor of probation, such as Castellanos’s caring for her elderly mother, the lack of sophistication in committing the crime, and her expressed remorse, her failure to learn from prior mistakes and her complete disregard for the law weigh heavily against probation. We cannot say the trial court’s decision to deny probation exceeds the bounds of reason considering all the facts and circumstances. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.)
DISPOSITION
The judgment is affirmed.