Opinion
D071790
02-07-2018
THE PEOPLE, Plaintiff and Respondent, v. SHANE MICHAEL GREISOFE, Defendant and Appellant.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCE351203, SCE352187) APPEAL from a judgment of the Superior Court of San Diego County, Daniel B. Goldstein, Judge. Affirmed. Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
Shane Michael Greisofe pleaded guilty to five counts of first degree burglary of an inhabited dwelling (Pen. Code, §§ 459, 460) and admitted various enhancements based on prior convictions. The trial court sentenced him to a total term of over 26 years in state prison. On appeal, Greisofe contends the court abused its discretion by allegedly failing to consider his substance abuse problem as a relevant factor in sentencing. However, during the sentencing hearing, defense counsel asserted no objection to the court's statement of reasons for its decision. Moreover, the court was aware of Greisofe's substance abuse history but believed he was "beyond rehabilitation" and needed to be imprisoned. We conclude Greisofe forfeited his claim on appeal and in any event, has failed to establish an abuse of the court's discretion. Accordingly, we affirm.
Further unspecified statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL HISTORY
The facts are uncontested. As a juvenile, beginning in 1999, Greisofe committed the offenses of larceny, disorderly conduct, and disturbing the peace. As an adult, in 2005, he committed robbery, battery, and several other offenses when he "snatch[ed]" an elderly woman's purse and fled from police in a car, leading to a high-speed pursuit and his capture. Greisofe served a prison sentence for the robbery and associated crimes. Between 2006 and 2010, he committed the offenses of possessing drug paraphernalia, resisting arrest, and driving on a suspended license.
In 2011, Greisofe committed multiple offenses, including possessing drugs, violating a restraining order, and receiving stolen property, for which probation was ordered. Then, between October and November 2011, he burglarized four different homes in the San Diego area, smashing windows or doors to gain entry and stealing cash and personal items, including a gun. He was convicted of four felonies and sentenced to a prison term of four years. He was released from prison on parole by February 2015.
Not long after his release from prison, the instant crime spree occurred. Between April and May 2015, Greisofe burglarized five different homes in the neighborhoods of La Mesa, El Cajon, and Lakeside. He broke glass windows and doors and stole personal items worth thousands of dollars. Most of the victims were unable to recover their stolen property, and one of the victims moved out of his home due to fear for his family's safety.
The People charged Greisofe with five counts of first degree burglary. (§§ 459, 460, subd. (a), 1203.085, subd. (b).) Regarding prior crimes, the People charged: (1) Greisofe suffered previous convictions of two or more felonies, making him ineligible for probation (§ 1203, subd. (e)(4)); (2) Greisofe served a separate prison term for his 2011 burglary convictions and for his robbery conviction and did not remain free of prison custody for five years after being released from prison for those respective crimes (§§ 667.5, subd. (b), 668); (3) the 2011 burglaries were serious felonies (§§ 667, subd. (a), 668, 1192.7, subd. (c)); and (4) the 2011 burglaries were prior strike offenses (§§ 667, subd. (b)-(i), 668, 1170.12). Greisofe pleaded guilty to the charged offenses and admitted all allegations.
Prior to the sentencing hearing, the probation department interviewed Greisofe and prepared a detailed report for the court's review, recommending a total prison sentence of 125 years to life plus 35 years. The People submitted a statement in aggravation, in which they stressed Greisofe's extensive and unabated criminal conduct over many years, the danger he posed to public safety and property, and his statutory ineligibility for probation. Greisofe submitted a statement in mitigation and in support of probation, in which he emphasized his lack of "violent" crimes and attributed his criminal conduct to a long-standing substance abuse problem. He also submitted a request to strike his prior strikes under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
For each of the five burglary counts, the probation department recommended a base term of 25 years to life plus a seven-year enhancement, totaling 125 years to life plus 35 years.
At the sentencing hearing, the court acknowledged receiving the parties' submissions; heard additional arguments from counsel, a victim's statement, and Greisofe's comments; and reviewed the probation department's report. The court recited Greisofe's lengthy criminal record, characterized his conduct in the current wave of burglaries as "dangerous," and made the following statements before issuing its sentence:
"The defendant is beyond rehabilitation, at least in my eyes. Repetitive conduct like this, he's now committed at least eight serious felonies and maybe a ninth depending on what that [robbery] really look[ed] like."
"There does not appear to be any recent engagement to try to . . . change his behavior. The pure sentencing goal here, the punishment goal here is, basically, incapacitation. . . . It's my opinion that the defendant needs to be warehoused, that he's a repetitive criminal."
"And I don't see the problem as—his problem, essentially, being a drug problem. I think he's a thief. And too often, at least in criminal court, we're confronted with the idea that everything that we see is because of a drug problem and we go ahead and we give
residential rehab or we give some type of program. We don't have any evidence whatsoever that the defendant indeed has a drug problem."
"So I don't see any reason to engage in Delancey Street or the balancing of the case against rehabilitation, I just don't see a reason for it."
Defense counsel did not object or ask for clarification or further supplementation of the trial court's reasoning. After providing the above explanation, the court struck three of Greisofe's prior strikes and selected a prison term for each count, for reasons stated on the record, to reach a total term of 27 years and six months. At a subsequent hearing, the court corrected a computational error and modified Greisofe's total term to 26 years and four months. This appeal followed.
The court grants Greisofe's unopposed request to augment the record to include the trial court's minute order and nunc pro tunc order correcting the sentencing calculation.
DISCUSSION
"[T]he waiver doctrine [applies] to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it . . . misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott).) A party may waive or forfeit a claim involving his or her sentence, "which, though otherwise permitted by law, [was] imposed in a procedurally or factually flawed manner." (Id. at p. 354, citing People v. Welch (1993) 5 Cal.4th 228, 236.) Counsel must understand, advocate, and clarify permissible choices at a sentencing hearing because "[r]outine defects in the court's statement of reasons are easily prevented and corrected if called to the court's attention." (Scott, supra, 9 Cal.4th at p. 353.)
Here, Greisofe claims the court erroneously commented that there was no evidence of his substance abuse problem and refused to consider rehabilitation or other more suitable options based on that incorrect assumption. Yet Greisofe failed to object to, or seek clarification regarding, the court's comments or rationale during the sentencing hearing. Had Greisofe objected, the court easily could have clarified or amplified its comments and reasoning as needed. Greisofe's failure to object forfeits his claim on appeal.
Even if the issue were properly before us, we would reject it because Greisofe has failed to establish an abuse of the trial court's discretion. " '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." ' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
The record in this case does not affirmatively show that the court failed to consider and weigh all relevant criteria in exercising its sentencing discretion. (People v. Kelley (1997) 52 Cal.App.4th 568, 582 ["The court is presumed to have considered all relevant factors unless the record affirmatively shows the contrary."].) Specifically, the record does not affirmatively show that the court (1) refused to consider Greisofe's position regarding his substance abuse problem, or (2) expressed hostility toward the concept of rehabilitation.
First, the record is replete with references to Greisofe's history of substance abuse, clearly showing that this information was presented to and considered by the trial court. The probation report discussed Greisofe's substance abuse problem in detail and included Greisofe's own statement about his drug use and his desire to participate in a drug treatment program. Both the prosecution's statement in aggravation and the defense's statement in mitigation addressed each side's proposed sentencing factors, with the defense describing Greisofe's struggles with substance abuse issues in detail. The trial court indicated it reviewed all this information, and it heard directly from defense counsel and Greisofe who reiterated that he had a long-term substance abuse problem and needed treatment. The trial court did not ignore Greisofe's substance abuse history—it merely rejected it as a sufficient mitigating factor in this case and concluded Greisofe's primary problem was not his substance abuse. (See People v. Abilez (2007) 41 Cal.4th 472, 530 [the fact that the trial court "did not find defendant's proffered mitigating evidence as persuasive as he would have liked does not undermine" the conclusion that the court weighed the aggravating and mitigating evidence].)
The trial court was not required to accept Greisofe's proffered mitigating evidence regarding his substance abuse history. (See People v. Regalado (1980) 108 Cal.App.3d 531, 538-540 [substance abuse can be an aggravating factor].)
Second, we are not persuaded that the trial court abdicated its duty when it referred to "the balancing of the case against rehabilitation" and stated that it did not see "any reason to engage in Delancey Street," a residential treatment program. We do not read the court's ambiguous remarks as a refusal to consider and weigh all relevant sentencing factors for this individual defendant. The record instead shows the trial court considered Greisofe's assertion that he suffered from a substance abuse problem and would benefit from treatment, but determined he was unsuitable for probation or a rehabilitation program given the nature and circumstances of the offenses, Greisofe's extensive criminal record, and his character traits. We discern no abuse of discretion by the trial court.
To the extent Greisofe concluded otherwise, it was incumbent upon him to object at the time of the sentencing hearing and ask the court to clarify its reasoning. (People v. De Soto (1997) 54 Cal.App.4th 1, 4 ["A defendant cannot for the first time on appeal challenge the manner in which the sentencing judge exercises discretion in making sentencing choices or articulates his or her supporting reasons."].) --------
DISPOSITION
The judgment is affirmed.
GUERRERO, J. WE CONCUR: McCONNELL, P. J. IRION, J.