Opinion
A169136
10-18-2024
THE PEOPLE, Plaintiff and Respondent, v. JEREMY KANE GEPHART, Defendant and Appellant.
NOT TO BE PUBLISHED
(Humboldt County Super. Ct. No. CR2302704)
Jackson, P. J.
Defendant Jeremy Kane Gephart challenges the trial court's order denying his request for probation and sentencing him to the two-year middle term under the abuse of discretion standard. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On September 8, 2023, a complaint was filed charging defendant with possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1); count 1)and unlawful possession of ammunition (§ 30305, subd. (a)(1); count 2).
Unless otherwise stated, all statutory citations herein are to the Penal Code.
These charges arose from the following incident occurring in the early evening of September 6, 2023. Federal law enforcement officers observed a white SUV parked on federal land from which a strong odor of cannabis was emanating. The officers approached the vehicle and asked defendant, the front seat passenger, if he was smoking cannabis. Defendant responded in the affirmative. The officers advised defendant that smoking cannabis on federal property was illegal and ordered him out of the vehicle. The officers then observed cannabis in plain view on the front seat. After beginning a probable cause search of the vehicle, one of the officers noticed a bulge protruding from under the left side of defendant's shirt. The officer searched defendant's person and found a stolen firearm with a magazine loaded with 20 rounds of ammunition. Officers also found in defendant's possession three high-capacity 20-round magazines, one 10-round magazine, and 71 rounds of ammunition.
On September 20, 2023, defendant entered an open plea of guilty to counts 1 and 2 in exchange for the trial court's agreement that his punishment would not exceed concurrent two-year sentences. Accordingly, on October 18, 2023, the trial court sentenced defendant to concurrent two-year middle term sentences as to each count, staying the count 2 sentence pursuant to section 654. Defendant's timely appeal followed.
DISCUSSION
The only issue on appeal is whether the trial court abused its discretion in denying defendant's request for probation and sentencing him to the middle term of two years in prison. Undisputedly, defendant was presumptively ineligible for probation because he had at least six prior felony convictions. (§ 1203, subd. (e)(4).)
To override a defendant's presumptive ineligibility for probation, the trial court must find the defendant's case presents an "unusual case[] in which the interests of justice would best be served if the person is granted probation . . . ." (§ 1203, subd. (e); Cal. Rules of Court, rule 4.413(b).) To determine whether a particular case may be deemed "unusual," the court looks to the factors identified in rule 4.413. These factors fall into three broad categories: (1) a factor or circumstance indicating the basis for the statutory limitation on probation, while technically present, is not fully applicable to the case; (2) a factor or circumstance tending to reduce the defendant's culpability for the offense, although it does not amount to a defense; and (3) any consideration appearing from the results of a risk/needs assessment of the defendant, if one was performed. (Rule 4.413(c).)
All rule citations herein are to the California Rules of Court.
"Under rule 4.413, the existence of any of the listed facts does not necessarily establish an unusual case; rather, those facts merely' may indicate the existence of an unusual case.' (Rule 4.413(c), italics added.) This language indicates the provision 'is permissive, not mandatory.' [Citation.] '[T]he trial court may but is not required to find the case unusual if the relevant criterion is met under each of the subdivisions.' [Citation.]" (People v. Stuart (2007) 156 Cal.App.4th 165, 178 (Stuart).)
Moreover, if the court determines as a threshold matter that the presumption against probation is overcome, it then performs a second evaluation of whether or not to grant probation pursuant to rule 4.414. (Stuart, supra, 156 Cal.App.4th at p. 178.) This rule sets forth factors affecting the probation decision that include facts relating to the crime and facts relating to the defendant. (Rule 4.414(b)-(c).) "However, 'mere suitability for probation does not overcome the presumptive bar . . . . [I]f the statutory limitations on probation are to have any substantial scope and effect, "unusual cases" and "interests of justice" must be narrowly construed,' and rule 4.413 limited to those matters in which the crime is either atypical or the offender's moral blameworthiness is reduced.'" (Stuart, at p. 178.)
"A sentencing court enjoys broad discretion in determining whether to grant or deny probation. A defendant who is denied probation bears a heavy burden to show the trial court has abused its discretion. [Citations.] Furthermore, 'a denial of probation after consideration of the application on its merits is almost invariably upheld. [Citations.]' (3 Witkin &Epstein, Cal. Criminal Law [(3d ed. 2000)] Punishment, § 532, pp. 718-719.)" (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1157 (Mehserle).) We affirm the sentencing decision on appeal so long as the court exercised its discretion "in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.'" (People v. Sandoval (2007) 41 Cal.4th 825, 847, superseded by statute on another ground as stated in People v. Lynch (2024) 16 Cal.5th 730.)
I. No Abuse of Discretion to Deny Probation.
Here, defendant identifies two of the factors listed in rule 4.413 that he claims lessened his culpability for the crime: (1) he committed the crime due to two mental conditions (depression and severe substance abuse), and there was a high likelihood he would respond favorably to treatment for these conditions were the court to order him into a mental health facility or program as a probation condition (rule 4.413(c)(2)(B)); and (2) he participated in the crime under circumstances of great duress that arose from fear for his life and the lives of his loved ones following his brother's recent murder, and he had no recent record of committing crimes of violence (rule 4.413(c)(2)(A)). According to defendant, the court's failure to adequately consider these factors was an abuse of discretion. We disagree.
The law is clear that unless the record affirmatively shows otherwise, the trial court is deemed to have considered the relevant sentencing factors. (Rule 4.409.) And, while the court is generally required to state its reasons for denying probation (rule 4.406(b)(2)), "[t]his obligation . . . is satisfied by an explanation of why probation has been rejected in favor of imprisonment. [Citations.]' [Citations.] For instance, the' "nature and seriousness of the offense"' is sufficient." (Mehserle, supra, 206 Cal.App.4th at p. 1157.) Here, these standards were met.
The probation report, which the trial court relied upon during sentencing, discussed the very factors that defendant claims were inadequately considered. Among other things, the report identified defendant's diagnosis at a young age of posttraumatic stress disorder due to child abuse, as well as his history of depression and significant substance abuse that began around age 10. The report also discussed the recent murder of defendant's brother, which, according to the probation officer, caused defendant to experience depression and anxiety. Based on these and other factors (including criminal history), the probation department found that defendant had a high risk of reoffending.
As defendant notes, the probation department nonetheless recommended that he receive two years of supervised probation given that he had articulated realistic goals and demonstrated a genuine motivation to work toward those goals. According to the report, defendant was willing to undergo treatment and to wear an ankle monitor in order to receive probation and expressed that his main goal was to get his son back in his custody.
Defendant lost custody of his son when he previously went to prison.
At the sentencing hearing, defendant's counsel reiterated these factors. His counsel vehemently argued that defendant had never committed a violent crime and yet, unfortunately, felt the need to arm himself at the time of the crime for protection in light of his brother's recent murder. The prosecutor, in turn, pointed out defendant was in possession of multiple high-capacity magazines during the instant offense, suggesting the circumstances were aggravated as compared to those typically present in cases involving the same offense. (See rule 4.413(c)(1)(A).)
Ultimately, the trial court denied defendant's request for probation, expressing surprise that probation recommended it in light of defendant's record. Referencing defendant's multiple prior felony convictions, the court stated: "The fact is that he most recently suffered a conviction out of this county for the same behavior in which he received two years prison sentence back in 2021. He just recently got off PRCS [postrelease community supervision]. And this would be his third violation of a [section] 29800 felony. It would be the Court's intention to sentence him tentatively to the two years based on his record, the fact that he is not statutorily eligible for probation unless [there are] unusual circumstances, and one was not provided in the probation report."
The court's finding that defendant's case was not "unusual" for purposes of rule 4.413 was soundly based on the evidence and not an abuse of discretion. Accordingly, its denial of probation stands. (People v. Sandoval, supra, 41 Cal.4th at p. 847.)
II. No Abuse of Discretion to Impose the Middle Term.
Perhaps anticipating our conclusion, defendant argues that even assuming probation were properly denied, the trial court abused its discretion by not imposing the lower term sentence. Similar to before, defendant claims the court failed to adequately consider certain mitigating factors noted in the probation report-namely, his perceived" 'need to protect himself and his loved ones'" after his brother's recent murder (rule 4.423(a)(4)); his experience of" 'psychological, physical or childhood trauma,'" including but not limited to childhood abuse and neglect, which were" 'factor[s] in [his] commission of the crime'" (rule 4.423(b)(3)); his severe and ongoing substance abuse that began at age 10 with cannabis and culminated in his recent fentanyl use (rule 4.423(b)(2)); his voluntary acknowledgment of guilt early on in the criminal proceedings (rule 4.423(b)(3)); and his "consistently satisfactory performance during prior grants of probation" (rule 4.423(b)(6)). According to defendant, these factors, while mentioned in the report, were not "sufficiently detailed and accurately] apprais[ed] . . . ."
We reject defendant's speculation that the court failed to consider these factors. Indeed, the factors were discussed in the probation report, which the court "read and considered" before sentencing defendant. For example, the report described defendant's traumatic childhood, including the fact that when he was a baby, he sustained burns to over 80 percent of his body when his drug-addicted mother left him in a hot bath. The report also detailed defendant's repeated transfers within the foster care system, beginning at age 8 and ending at age 18, when his foster parents evicted him for financial reasons. And, as we have already noted, the report discussed defendant's long history of substance abuse and the depression and anxiety he experienced following his brother's murder.
Moreover, at the sentencing hearing, the trial court acknowledged defendant's prior successful performance on supervised release but remained doubtful that he would stay out of trouble: "I do, in your favor, notice that you were on probation, or PRCS successfully for a year and were discharged on July 5th, 2023; so then, this occurred a month later. I do hear that you are willing to comply with probation, but I just don't believe it based on your risk factors and your prior record."
As before, we conclude there is simply no basis on this record for finding the trial court abused its discretion by sentencing defendant to the middle term. To the contrary, after properly considering the relevant mitigating and aggravating factors, the court reached a decision that was neither irrational nor arbitrary. The sentence thus stands. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 833 ["In the absence of . . . a showing [that the sentence was irrational or arbitrary], 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"].)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Simons, J. Burns, J.