Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD206174, Roger W. Krauel, Judge.
McINTYRE, J.
Alex Rafael Garcia appeals a judgment entered on his plea of guilt to felony driving with a blood alcohol content (BAC) of .08 percent or more. He contends that the superior court abused its discretion in denying him probation and sentencing him to the upper term of three years in prison. We find no such abuse and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In the evening of August 7, 2006, a California Highway Patrol officer responded to a call about a disabled pickup truck in the ice plant on the shoulder of the transition ramp from Interstate 5 to Interstate 15 in San Diego. Although the truck was registered to Garcia, he told the officer that he had loaned it to his father earlier in the day and that he had driven to the scene in his father's Volkswagen only after his father had gotten the truck stuck in the ice plant.
After smelling alcohol on Garcia's breath, the officer administered a series of field sobriety tests; Garcia, who contended that he had recently had only two beers, did poorly on the tests and was arrested for driving under the influence. A subsequent breathalyzer test showed that Garcia had a BAC of .10. Garcia had the keys to the pickup truck in his possession and his father had the keys to the Volkswagen at that time. (Garcia's father also later admitted that he had lied about having been the driver of the truck.)
Garcia was charged with driving under the influence of alcohol and driving while having a BAC of .08 percent or more; the information alleged that he had been convicted of driving under the influence on three occasions in the preceding ten years. Garcia pleaded guilty to the latter count and admitted the prior convictions. The plea agreement specified that the maximum punishment was three years in state prison and although the probation report acknowledged that Garcia had not had more than 1-1/2 years between convictions since 1994, it nonetheless recommended that the court place Garcia on probation based on his willingness to obtain employment, to enter a substance abuse program, and to comply with the conditions of probation upon release.
At the sentencing hearing, the court declined to follow the probation officer's recommendation in light of Garcia's history of substance abuse offenses, including numerous incidents of driving under the influence, his poor performance while on probation (repeatedly) in the past and the fact that these circumstances had not altered Garcia's willingness to continue to violate the law. Based on those factors, the court concluded that granting probation would not be in the interests of justice and that the imposition of an upper term was warranted. Garcia appeals.
DISCUSSION
Where a criminal defendant is eligible for probation, the granting of probation is an act of clemency by the sentencing court rather than something to which the defendant is entitled and that court has broad discretion to determine whether the defendant meets the statutory requirements for probation. (People v. Arnold (2004) 33 Cal.4th 294, 303; People v. Hubbell (1980) 108 Cal.App.3d 253, 260.) If the court determines that the defendant is not an appropriate candidate for probation, its determination as to the sentence to be imposed is likewise within its broad discretion. (People v. Jordan (1986) 42 Cal.3d 308, 316.)
In reviewing a sentencing court's decisions as to such matters, we must presume that the decisions were proper absent "a clear showing that [the] sentencing decision was arbitrary or irrational" or exceeded the bounds of reason. (People v. Giminez (1975) 14 Cal.3d 68, 72; People v. Hubbell, supra, 108 Cal.App.3d at p. 260.) Thus the party challenging the sentence bears the burden of making such a showing. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) Garcia has not met that burden here.
The general objectives of sentencing include society's protection, punishment, deterrence, prevention, restitution, and uniformity in sentencing. (Cal. Rules of Court, rule 4.410; all further rule citations are to these rules.) In determining whether to place a defendant on probation or to impose a sentence, a court must consider facts relating to the crime and, as more particularly relevant here, facts relating to the defendant, including: (a) the defendant's prior record, prior performance on probation, willingness and ability to comply with terms of probation; (b) the likely effect of imprisonment; (c) whether the defendant is remorseful; and (d) the likelihood defendant will be a danger to others if he is not imprisoned. (Rules 4.409, 4.414.)
Here, the court stated its reasons for denying probation and imposing an upper-term sentence, including Garcia's extensive (albeit largely misdemeanor) record, his poor performance on probation on numerous prior occasions, his lack of any apparent remorse or motivation to rehabilitate himself and the likelihood that he would reoffend if placed on probation. These reasons, which are well substantiated in the record, provide ample support for the court's decisions to deny probation and to sentence Garcia to a three-year term. Further, although the probation officer relied on Garcia's expressed willingness to submit to rehabilitation, the court was not required to accept Garcia's statements as credible and its comments about Garcia's past history of substance abuse, criminal offenses and lack of remorse suggest that it found to the contrary. Doing so was not an abuse of discretion.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., O'ROURKE, J.