Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA310522 Sam Ohta, Judge.
Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.
ZELON, J.
Michael O’Bryant Hands sold rock cocaine to an undercover police officer in the “Skid Row” area of Los Angeles. Following a jury trial he was convicted of selling a controlled substance. He was sentenced the four-year middle term in state prison. On appeal Hands argues that remand for resentencing is necessary. We affirm.
Hands first contends the court was unaware it could impose the two-year lower term. But the transcript shows the court was well-aware of its sentencing discretion. Noting the case was not particularly serious or “earth shattering,” the court decided not to impose the upper term, but concluded Hands’s criminal history justified imposing the middle term. Defense counsel argued the lower term was appropriate because Hands did not solicit anyone to purchase his product; rather the buyer came to him. Counsel also argued the amount of rock cocaine involved was small. The court responded it “did think about the sentencing range here, but [Hands] does have an 11352 from ’04. It appeared to me that while giving him the three years for the prior conviction seemed excessive to me, to sentence [Hands] to either six years or seven years in the state prison seemed excessive. The fact that he has that prior conduct it seems to me precludes giving him the low[er] term. I don’t find any sort of mitigation here, so based on that the presumptive term would apply.” ~(RT 225-226)~ The court concluded, “[defense counsel] asked the court to consider the low[er] term, but I do not find that there are mitigating factors in this case. Based on all of the foregoing, the presumptive term would apply which is four years in state prison.” (Italics added.) ~(RT 227)~
Hands’s criminal history includes driving under the influence (1998), battery (1999), receiving stolen property (1999), grand theft (2001), burglary (2003), selling cocaine (2004), and possession of cocaine base (2006)
The trial court also stated it could not constitutionally impose the upper term under Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 166 L.Ed.2d 856] because the jury had not been asked to find any aggravating factors.
Hands points to the court’s use of “precludes” as reflecting its (mis)understanding that the lower term “would be impossible to give under existing law.” ~(AOB 9, fn. 3)~ However, when read in context, the word was underscoring the court’s belief that imposition of the lower term would not have been appropriate in light of the facts, specifically Hands’s prior felonies, including a 2004 conviction for the same offense.
In addition to a charge of selling a controlled substance (Health & Saf. Code, § 11352, subd. (a)) the People specially alleged Hands had previously been convicted of the same offense (Health & Saf. Code, § 11370.2, subd. (a)) and had served a separate state prison term for a felony (Pen. Code, § 667.5, subd. (b)). However, the People dismissed these allegations at the sentencing hearing. ~(RT 225)~
Hands also contends the trial court abused its discretion by not imposing the lower term. He argues the middle term is unfair because he was living on Skid Row when he sold the rock cocaine, and he was solicited by an undercover narcotics officer who lied about his identity. “‘“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 the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’ [Citations.]” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) Although Hands’s “down and out” circumstances at the time of his arrest were unfortunate, they do not excuse his criminal conduct. In any event, Hands has not met his burden of showing the court abused its discretion by imposing the middle term.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J. WOODS, J.