Opinion
C081081
12-29-2016
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH EUGENE HAMMETT, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. CM043670 & CM043848)
Defendant Joseph Eugene Hammett appeals the judgment entered following a negotiated disposition of two separate cases. In case No. CM043670, defendant pleaded guilty to receiving stolen property. (Pen. Code, § 496, subd. (a).) In case No. CM043848, defendant pleaded guilty to driving or taking a vehicle without consent. (Veh. Code, § 10851, subd. (a).) Defendant also admitted he was out on bail in case No. CM043670 when he committed the vehicle theft in case No. CM043848. (§ 12022.1.) The trial court sentenced defendant to an aggregate term of five years eight months in county jail.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends the trial court abused its discretion in refusing to impose a split sentence, which would have allowed him to serve a portion of his sentence on mandatory supervision. According to defendant, the trial court considered irrelevant factors that were not supported by the record, and failed to weigh the rehabilitative and public safety benefits of mandatory supervision. We disagree and affirm the judgment.
DISCUSSION
As an initial matter, the People correctly assert defendant forfeited his argument by failing to object in the trial court on the ground he now claims on appeal. (See People v. Scott (1994) 9 Cal.4th 331, 353 ["waiver doctrine should apply to claims involving the trial court's failure to properly . . . articulate its discretionary sentencing choices," including when "the stated reasons allegedly do not apply to the particular case"]; id. at p. 355 [waiver doctrine should apply to a claim that sentencing factors were "inapplicable . . . and improperly weighed"].) Here, the trial court indicated at the outset of the sentencing hearing it was inclined to follow the recommendation of the probation officer, which was to sentence defendant to five years eight months in county jail. The trial court specifically stated it was inclined to deny mandatory supervision in light of defendant's history. Following the trial court's comments, defendant asked the court to follow the strong preference for a split sentence under section 1170, subdivision (h). In support of his request, defendant claimed his last jail commitment did not "really involve any treatment or education." He then said his "real concern" with denying mandatory supervision was not having an opportunity to acquire "life skills" before he was released back to the "streets." Defendant, however, did not challenge the specific reasons provided by the probation officer for denying mandatory supervision or otherwise argue his history was not a valid reason to deny mandatory supervision. Nor did he interpose an objection after the trial court pronounced sentence and explained its reasons for denying mandatory supervision. Under these circumstances, defendant's claim on appeal is forfeited.
The probation officer stated that defendant is an unsuitable candidate for mandatory supervision because he "has a poor history of probation and parole compliance, lacks remorse, and fails to take responsibility for his actions . . . ."
After the defendant requested mandatory supervision, the trial court asked the probation officer why she did not recommend mandatory supervision. In response, the probation officer said defendant had eight recent violations of parole, and had continued to commit crimes. She also said defendant was not strongly motivated to take responsibility for his crimes.
But even if we were to address the merits of defendant's claim, we would find it lacks merit. Under the Criminal Justice Realignment Act of 2011, qualified persons convicted of nonserious and nonviolent felonies are sentenced to county jail instead of state prison. (People v. Scott (2014) 58 Cal.4th 1415, 1418-1419.) Trial courts may commit the defendant to county jail for a full term in custody, or impose a split sentence consisting of county jail followed by a period of mandatory supervision. (Ibid.) Because a trial court's decision to impose or not impose mandatory supervision is discretionary, we review the decision for abuse of discretion. (People v. Catalan (2014) 228 Cal.App.4th 173, 178.)
It is undisputed that the Criminal Justice Realignment Act of 2011 applies to defendant.
Section 1170, subdivision (h)(5)(A), states: "Unless the court finds that, in the interests of justice, it is not appropriate in a particular case, the court, when imposing a sentence pursuant to paragraph (1) or (2), shall suspend execution of a concluding portion of the term for a period selected at the court's discretion." California Rules of Court, rule 4.415 provides, in part: "Because section 1170(h)(5)(A) establishes a statutory presumption in favor of the imposition of a period of mandatory supervision in all applicable cases, denials of a period of mandatory supervision should be limited." (Rule 4.415(a).) Rule 4.415 establishes criteria the court "may consider" for determining when mandatory supervision is not appropriate in the interest of justice, including "[w]hether the nature, seriousness, or circumstances of the case or the defendant's past performance on supervision substantially outweigh the benefits of supervision in promoting public safety and the defendant's successful reentry into the community upon release from custody." (Rule 4.415(b)(4).) Rule 4.415 explains, however, that the overall determination "must be based on factors that are specific to a particular case or defendant." (Rule 4.415(b).)
Further rule references are to the California Rules of Court.
Here, the trial court's decision to deny a period of mandatory supervision was not an abuse of discretion. The court stated valid reasons for its sentencing decision that were supported by the record, including defendant's chronic unsatisfactory performance on probation and parole, his lack of remorse, and his failure to take responsibility for his actions. (See rules 4.415(b)(4), 4.408 [trial court may consider factors not enumerated that are reasonably related to the court's discretionary sentencing decision].) Because the court's decision was based on valid criteria, it was well within its sentencing discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847 [court abuses its sentencing discretion when it bases its decision on irrelevant circumstances or otherwise relies on an improper basis for decision].)
We reject defendant's contention the record does not support the trial court's conclusion he lacked remorse. The probation report specifically stated defendant "attempted to deflect blame for his behavior on the foster care system and the criminal justice system," and defendant's "expressed remorse . . . was suspect." The probation report explained, "[D]efendant has been involved in the criminal justice system since the age of seventeen. He is practiced in the art of making statements that he believes others want to hear, but historically, he reverts back to his criminal behavior." The report noted defendant "admitted wanting help for his drug addiction, but acknowledged he has not made the effort to make the necessary lifestyle changes on his own accord."
Although not entirely clear, it appears a period of mandatory supervision was denied for two additional reasons: (1) Defendant's criminal history; and (2) the nature, seriousness, and circumstances of the cases. --------
We reject defendant's argument to the contrary. Defendant asserts the trial court considered irrelevant factors, but rule 4.415(b) places no limits on the nature of factors that a court may consider in denying mandatory supervision in the interests of justice, except the factors must be "specific to a particular case or defendant." (Ibid.) The record reflects the trial court relied on relevant factors, and met its legal obligation to set forth the reasons for the denial of mandatory supervision on the record. (Rule 4.415(d).) Further, contrary to defendant's contention, the trial court's failure to specifically mention certain factors does not demonstrate it did not consider them. Absent an explicit statement by the trial court to the contrary, it is presumed on appeal the trial court properly exercised its duty to consider all possible factors in determining the appropriate sentence. (Rule 4.409; People v. Oberreuter (1988) 204 Cal.App.3d 884, 887.) Nothing in the record suggests the trial court did not consider the factors that defendant now argues it should have considered.
DISPOSITION
The judgment is affirmed.
NICHOLSON, J. We concur: RAYE, P. J. ROBIE, J.