Opinion
A150104
05-09-2018
THE PEOPLE, Plaintiff and Respondent, v. BRIAN LEE GULBRANSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. Nos. SCTM-CRCR-2014-769002; SCTM-CRCR-2014-77278)
Appellant Brian Lee Gulbranson contends the trial court applied an incorrect legal standard when it determined that he had not overcome his presumptive ineligibility for probation. We disagree and affirm.
BACKGROUND
On April 23, 2014, appellant was stopped by police for driving without a functioning brake light. The officer inquired about the smell of marijuana emanating from the vehicle, and appellant admitted that there was marijuana inside the car. Appellant was handcuffed and placed in the officer's patrol vehicle. The officer searched the vehicle and found a loaded handgun under the passenger seat, several .357-caliber handgun cartridges, and a backpack in the trunk, containing another firearm, magazines, and a box of .357-caliber ammunition.
Appellant was arrested and subsequently posted bail, with arraignment set for May 20, 2014. When he did not appear, the trial court issued a bench warrant.
On March 29, 2016, the Mendocino County District Attorney charged appellant by information, in case number SCTM-CRCR-2014-769002, with two felony counts of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)), and one felony count of unlawfully carrying a loaded firearm (§ 25850, subd. (a)(1)). In a separate case, SCTM-CRCR-2014-77278, the district attorney charged appellant by information with one felony count of failure to appear in court (§ 1320.5).
All further undesignated statutory references are to the Penal Code.
On September 6, 2016, appellant pleaded no contest to possession of a firearm by a felon (§ 29800, subd. (a)(1)) in the first case, and failure to appear in court in the second case (§ 1320.5). The remaining charges were dismissed pursuant to a plea agreement. The terms of the plea agreement included a sentence of no more than two years in state prison, with an opportunity for appellant to ask the court for probation at the time of sentencing.
Prior to the sentencing hearing, the probation department prepared a report indicating that, pursuant to California Rules of Court, rule 4.413, absent "unusual" circumstances, appellant was presumptively ineligible for probation in light of his numerous felony convictions—11 total, including the two present convictions. The report also noted that appellant had three cases pending in Tehama County, with the potential of being convicted of another felony offense, as well as three additional misdemeanor convictions.
All further undesignated rule references are to the California Rules of Court.
The report indicated that appellant had suffered a head injury in 1997, which appellant described as a " 'hate crime' " where his " 'head was bashed in.' " The seriousness of the head injury was evident by the large scar, spanning ear to ear on appellant's head. Appellant reported that, as a result of this injury, he had and continues to suffer from severe headaches, as well as short and long-term memory loss.
It was further reported that during the interview, in response to questions, appellant would say that he could not recall or did not remember due to his injury. These responses occurred when appellant was questioned about timelines, and the events of the most recent offense. Although not doubting that appellant has experienced memory loss, the probation department questioned whether appellant used this an excuse when it benefitted him. Especially, in light of the fact that appellant was confident in his ability to recollect his drug and alcohol history, which he reported as minimal. Given his prior record, however, the department opined that appellant was either minimizing or not being forthcoming about his drug history.
The report described appellant's minimization of his involvement in the instant convictions, as well as his history of unlawful firearm possession, and history of failing to appear, all of which weighed in favor of a prison term. Yet, the probation department was inclined to give him another chance because appellant had not re-offended since 2006, when he was sentenced to state prison "with EOSS" [execution of sentence suspended], and was successful on that grant. The department also noted that appellant appeared sincere and motivated to return to his family and to provide support for his mother and his children.
Before the sentencing hearing, appellant's mother submitted a letter to the court pleading for mercy and asking for probation. The letter advised the court that appellant had lost several family members in 2014. His grandfather died in January; his uncle was hit and killed by a car in March, and his father took his own life in August. Appellant's mother also reported that appellant's absence was a huge financial and emotional hardship for her, as well as for appellant's children who "desperately" needed him.
At the sentencing hearing, the trial court noted that the plea bargain appellant accepted allowed for the court to sentence him to up to two years in prison. The trial court also indicated that it had considered appellant's request for probation, his probation report, and the letter from his mother. The prosecutor argued against a grant of probation, emphasizing appellant's criminal record, the interest of public safety, and the fact that, with custody credit, appellant would "almost be done" if sentenced to prison. In response, defense counsel urged the court to follow the probation department's recommendation. He noted that appellant had done well on probation in the past, that the prior felony convictions were "old," and that "all but one" of the prior felony convictions were subject to Proposition 47 reduction. Defense counsel also stated that a grant of probation would allow appellant to care for his mother, and that appellant had agreed to follow the terms of probation.
After these initial arguments, the trial court noted that appellant was "presumptively ineligible for a grant of probation absent extraordinary circumstances." The court invited defense counsel to address this issue. In response, defense counsel stated that appellant had suffered a serious head injury, which limited appellant "in a significant sort of way." He also noted that a substantial amount of time had passed since appellant's previous felony convictions and that appellant previously had done well on probation.
Defense counsel did not address the trial court's use of the word "extraordinary" to describe the circumstances in which the presumption of probation ineligibility can be overcome. The prosecutor responded that appellant had violated probation before, had pending felony charges at the time of sentencing, and that probation would not serve the public interest. The prosecutor stated that the "eight years between his [last] conviction and picking up the new offense isn't a tremendous amount of time." The prosecutor argued that there were no "unusual circumstances that justify putting the public at risk." (Italics added.)
The court denied probation and sentenced appellant to two years in state prison, with 425 days of custody credit. In denying probation, the court explained that it had been "struggling" with the fact that appellant did not have a lot of time left to serve if probation were denied and he would be supervised upon his release even if he were sent to prison "versus whether or not, based on his record, the Court can find that there are sufficient extraordinary factors that overcome the presumption of his ineligibility for probation, and really all I've got to work with is the head injury that he suffered and his prior success on probation and the significant amount of time that he's already served in custody."
At this point, the prosecutor interjected to take issue with the favorable characterization of appellant's performance on prior grants of probation. The prosecutor noted that appellant had committed a felony while on a prior grant of probation. Defense counsel acknowledged that appellant had previously violated probation. The court continued and further explained this was a "difficult case," but found that appellant had "too many felony convictions" and that he still had "other open felony matters," such that the court was unable "to identify clear factors" that would support the conclusion that this was an "extraordinary case" where probation should be granted.
At no point during the sentencing hearing did defense counsel object to the court's use of the term "extraordinary" to describe the circumstances necessary to overcome the presumption against probation.
DISCUSSION
Appellant argues that the trial court, by referring to "extraordinary" instead of "unusual" circumstances as the standard to overcome his presumptive ineligibility, applied an incorrect legal standard. Despite having not raised this issue below, he maintains this issue is cognizable on appeal, as it presents a pure question of law. Alternately, appellant claims that if the issue has not been adequately preserved, then he was denied effective assistance of counsel.
We need not determine whether the issue has been forfeited or the possible ineffective assistance of counsel claim, because the claim indisputably fails on the merits. A. Standard of Review
Probation is "an alternative form of punishment in those cases when it can be used as a correctional tool." (People v. Edwards (1976) 18 Cal.3d 796, 801; People v. Balestra (1999) 76 Cal.App.4th 57, 67.) Trial courts have "wide discretion" in granting or denying probation. (People v. Kronemyer (1987) 189 Cal.App.3d 314, 364, overruled on another point in People v. Whitmer (2014) 59 Cal.4th 733, 739.) Our review of a denial of probation is for an abuse of discretion. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121; People v. Edwards, supra, 18 Cal.3d at p. 807.) A trial court's "decision denying probation will not be disturbed on appeal except upon a clear showing the trial court abused its discretion in an arbitrary or capricious manner. [Citations.]" (People v. Kronemyer, supra, 189 Cal.App.3d at pp. 364-365.) "On appeal, . . . '[t]he 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.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) A defendant bears a "heavy burden" in showing that a trial court abused its discretion in denying a request for probation. (People v. Kronemyer, supra, 189 Cal.App.3d at p. 365.)
However, if the question is whether the trial court applied the correct legal standard in exercising its discretion, the standard of review is de novo. (In re Shannon M. (2013) 221 Cal.App.4th 282, 288-289.) B. The Trial Court Did Not Err in Denying Probation
Appellant admits that he was presumptively ineligible for probation under section 1203, subdivision (e)(4), which provides, "(e) Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to [¶] . . . [¶] (4) Any person who has been previously convicted twice in this state of a felony. . . ." In these circumstances, courts must then determine whether the presumption against probation has been overcome pursuant to rule 4.413, which lists certain criteria relevant to this discussion as follows: "(c) Factors overcoming the presumption of ineligibilty [¶] The following facts may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate: [¶] Factors relating to basis for limitation on probation [¶] (1) A fact or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including: [¶] . . . [¶] (B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense." (Rule 4.413.)
Appellant contends that the court applied an erroneous legal standard in denying his request for probation. As evidence of this purported legal error, appellant relies on the trial court's reference to "extraordinary" instead of "unusual" circumstances. Citing the Oxford English Living Dictionary (Oxford Univ. Press https://en.oxforddictionaries.com), appellant contends that in "common usage," the words " 'unusual' " and " 'extraordinary' " do not mean the same thing. The word " 'unusual' " means that which is " '[n]ot habitually or commonly occurring or done.' " (Ibid.) Whereas, "extraordinary" is defined as " '[v]ery unusual or remarkable[.]' " (Ibid.) According to appellant, "extraordinary," by its reference to " '[v]ery unusual,' " suggests " 'an even greater degree' " of " 'rarity or uncommonness' " than " 'unusual.' "
Neither section 1203 nor rule 4.413 define "unusual."
This semantic debate notwithstanding, there is no basis for concluding the trial court was confused about the applicable law. Appellant has an extensive record—at last count, eleven felony convictions. The trial court's statement of reasons evinces an understanding of sentencing law. The fact the trial court referred to "extraordinary" instead of "unusual" circumstances is not evidence of any confusion. The trial court explained that probation was not appropriate given appellant's criminal history. (People v. Deloza (1998) 18 Cal.4th 585, 599-600 [reviewing court may look to statements of trial court to determine whether it understood its sentencing discretion].) The court also indicated that it had read the probation report and the letter from appellant's mother, yet could not find anything remarkable about appellant's case, other than the fact that he had sustained a serious head injury in the past. The trial court did not abuse its discretion in determining that appellant's head injury was not, in and of itself, sufficient to overcome appellant's presumptive ineligibility for probation.
On this record, nothing suggests that the trial court misunderstood the applicable law or the scope of its sentencing discretion. (People v. Galvez (2011) 195 Cal.App.4th 1253, 1264.)
DISPOSITION
The judgment is affirmed.
/s/_________
REARDON, J. We concur: /s/_________
STREETER, ACTING P. J. /s/_________
SCHULMAN, J.
Judge of the Superior Court of California, County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.