Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. CR090071
RUVOLO, P. J.
Appellant Raymond Lee Hayden contends the trial court abused its discretion both in denying probation as recommended by the probation department, and by imposing the upper term. We disagree, and affirm.
FACTS AND PROCEDURAL HISTORY
During the early morning hours of January 1, 2009, appellant fled from police by vehicle during an attempted traffic stop, and proceeded to drive approximately 50 miles an hour through suburban streets, running at least seven stop signs and nearly causing a collision. Appellant then stopped so abruptly that the pursuing police cruiser crashed into the rear of his vehicle. After a short foot pursuit, appellant was “tasered” and arrested.
In March 2009, pursuant to an open plea, appellant pled guilty to “fleeing from a pursuing peace officer, with willful and wanton disregard for the safety of persons or property” (Veh. Code, § 2800.2, subd. (a)) in exchange for dismissal of a second count (Veh. Code, § 14601.2, subd. (a)), a prior strike (Pen. Code, §§ 667, subds. (d) & (e), 1170.12, subds. (b) & (c)) and prior prison term allegations (§ 667.5, subd. (b)).
All subsequent undesignated statutory references are to the Penal Code.
Appellant was presumptively ineligible for probation pursuant to section 1203 because he had been previously convicted twice in this state of a felony. However, appellant’s probation report recommended probation, concluding that the ineligibility presumption was overcome by the existence of unusual circumstances warranting probation under California Rules of Court, rule 4.413. Nonetheless, having read and considered the probation officer’s report, the trial court declined to find appellant’s case unusual, denied probation, and sentenced appellant to the aggravated term of three years (the upper term). The trial court discussed its rationale and sentencing as follows:
All subsequent undesignated rule references are to the California Rules of Court.
“When I read this report, and then read the recommendation of the probation officer, I... frankly, just—couldn’t believe it. I couldn’t believe initially how that probation officer could ever arrive at that conclusion. And the reason I couldn’t is because... some of the things outlined by [the officer]. [Appellant] has multiple felony convictions. He’s got a [section] 496 in November of 1991 for which he has parole violations; [section] 245[, subdivision] (c) in October of [19]94, [for] which he did 16 months in prison and had parole violations; [section] 12020[, subdivision] (a)(1) in November of [19]97, I believe; three years in prison, parole violations; [Vehicle Code section] 10851, [section] 496, multiple felony convictions.
“And then this felony is a dangerous felony. [Vehicle Code section] 2800.2, evading a peace officer in a city where it’s reported that the—[appellant] was operating his vehicle at 50, 60 miles an hour—50 miles an hour in... downtown Eureka, essentially, north on G Street, failed to stop at the stop signs at Russ, Henderson, Carson, Buhne, Trinity, [and] Del Norte. This is a residential area.
“... I’m trying to search for a reason to understand and follow the recommendation of the probation officer.
“And the unusual circumstances that the probation officer relies upon [are] that this conviction is less serious from past convictions, and he’s been free from incarceration for a period of time.
“And, in fact, he’s been free from incarceration since he was released from prison, I believe, on February 29th 2008. So I just don’t... understand how the probation officer came to the conclusion that she came to. And... frankly, I just can’t find unusual circumstances... to replace [appellant] on probation.
“So I’m not going to follow[] the recommendation of the probation officer.
“First, [appellant] is statutorily ineligible for probation, given the multiple prior felony convictions.
“Relatively short time that he’s been out of prison—I mean, if this were possession of methamphetamine or something—not that that’s not serious, but—the conduct itself is... serious[,] and... dangerous[.] Dangerous to the community; dangerous to people who are on the sidewalks riding their bicycles; driving their cars. This is not... a low-level, low-impact, low-danger felony.
“And I just—I just, out of my obligation to protect the community, I can’t take the chance, given [appellant]’s prior history.
“So, first, I don’t find any unusual circumstances.
“I don’t find [appellant] is eligible for probation.
“Factors in aggravation: [P]rior convictions are numerous[; s]erved prior prison terms[; h]as been on parole[; w]as on parole at the time the offense was committed[; and p]rior performance both on probation and parole have been unsatisfactory. All of those factors are aggravating factors.
“Really[, I] can’t find any mitigating factors.
“So, regrettably, Mr. Hayden, I don’t take any pleasure in sending anyone to prison, but given your background, given the nature of this offense, I just can’t take the chance of releasing you back into the community where other people are going to be put in danger. So I’m not go[ing] to follow the recommendation of the probation officer.”
DISCUSSION
A. Denial of Probation
Appellant first contends that the trial court abused its discretion in declining to follow the probation officer’s recommendation of probation. Underlying this contention, appellant argues that the trial court abused its discretion in failing to find his to be an “unusual case” under rule 4.413, which would have made him eligible for probation.
First, we note that the trial court did not per se abuse its discretion in declining to follow the probation report, because having considered it, the court “ ‘may reject in toto the report and recommendation of the probation officer.’ [Citations.]” (People v. Warner (1978) 20 Cal.3d 678, 683, original italics, superseded by statute on other grounds (Warner); see People v. Ozene (1972) 27 Cal.App.3d 905, 915; People v. Henderson (1964) 226 Cal.App.2d 160, 165.) “ ‘The primary function served by the probation report required by section 1203 is to assist the court in determining an appropriate disposition after conviction.’...” (Warner, at p. 683, citing People v. Edwards (1976) 18 Cal.3d 796, 801, original italics.) “In the final analysis, that determination is a matter of judgment for the court, not the probation officer. [Citation.]” (Warner, at p. 683, fn omitted.)
Appellant admits that he was presumptively ineligible for probation pursuant to section 1203, subdivision (e)(4), which provides, “(e) Except in unusual cases where the interests of justice would be best 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) Facts showing unusual case [¶] The following facts may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate: [¶] (1) Facts relating to basis for limitation on probation [¶] 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, original bolding, italics added.)
Appellant contends that the trial court abused its discretion in finding that his case was not unusual, because his instant felony conviction was less serious than his disqualifying felonies, and because he has been free from incarceration and serious violation of the law for a substantial amount of time.
We review the trial court’s finding that a case may or may not be unusual for abuse of discretion. (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) The trial judge’s discretion in determining whether to grant probation is broad. (People v. Stuart (2007) 156 Cal.App.4th 165, 178-179 (Stuart).) “ ‘ “[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. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony).) 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.’ ” ’ [Citation.]” (Id. at p. 377.) “[T]hese precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Ibid.)
“[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, as rule [4.]413 provides, limited to those matters in which the crime is either atypical or the offender’s moral blameworthiness is reduced.” (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1229 (Dorsey); accord, Stuart, supra, 156 Cal.App.4th at p. 178.) Moreover, rule 4.413(c) is permissive, not mandatory (Stuart, at p. 178), and “ ‘[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.]” (Ibid.)
Rule 413 has since been renumbered 4.413.
The trial court’s implicit finding that appellant’s current offense was no less serious than his prior felonies was reasonable. Appellant’s disqualifying prior felony convictions are as follows: prior convictions for receiving stolen property (§ 496); manufacturing or selling certain concealed weapons (§ 12020); theft and unlawful driving or taking of a vehicle (Veh. Code, § 10851); attempted accessory to a felony (§ 664, 32); and assault with a deadly weapon, other than a firearm, upon an on duty peace officer (§ 245, subd. (c)). The court reasoned that the current crime was no less serious than appellant’s prior convictions, noting it was not a low-impact, low-level, low-danger felony, as contended by appellant on appeal.
Although the trial court did not articulate its specific weighing process, the usual presumption is that trial judge acted according to law. (People v. Superior Court (Felmann) (1976) 59 Cal.App.3d 270, 277.)
We agree. Evading police through a suburban area at 50 miles per hour while running seven stop signs, almost causing a collision and causing the pursing police cruiser to crash into the rear of his vehicle is not a low-level, low-impact, low-danger felony, nor is it a crime which is less serious than appellant’s prior crimes. Given the dangerous conduct underlying this conviction, the probation restriction of section 1203, subdivision (e)(4) was plainly applicable.
Appellant’s argument that his previous course of good conduct should be taken into account is misplaced, because it is not reasonably related to the decision of whether an offense is unusual. (Dorsey, supra, 50 Cal.App.4th at p. 1229.) Furthermore, appellant’s other contentions supporting the argument that his case is unusual are without merit. We also deny appellant’s request contained in a footnote in his opening brief to take judicial notice of certain facts. (Rule 8.252(a)(1).)
Additionally, the trial court’s finding that appellant had not been “free from incarceration and serious violation of the law for a substantial time before the current offense” was reasonable. The court’s conclusion was based on the fact that appellant had only been free from incarceration for 10 months.
We note too that “mere suitability for probation does not overcome the presumptive bar set out in section[]1203.... Rule [4.]413 itself evidently contemplates a two-step process when it states that ‘[if] the statutory limitation on probation is overcome... the court should then apply the criteria in rule [4.]414 to decide whether to grant probation.’...” (Dorsey, supra, 50 Cal.App.4th at p. 1229, original italics.) Accordingly, even if we were to find that the trial court abused its discretion in declining to find appellant’s case unusual, because rule 4.413 is permissive, we cannot conclude that appellant otherwise met the criteria under rule 4.414 sufficient to mandate a grant of probation. Appellant’s long history of disregard for the law, accompanied by his failure to comply with past parole/probation obligations, make him unsuitable for probation.
Rule 413 has since been renumbered 4.413.
Rule 414 has since been renumbered 4.414.
B. Imposition of Aggravated Term
Appellant alternatively contends that the trial court abused its discretion by imposing the aggravated term. Our review of the trial court’s determination of the appropriate prison term requires that we apply the same broad discretionary standard as when reviewing the trial court’s decision to deny appellant probation. (U.S. v. Booker (2005) 543 U.S. 220, 233; Carmony, supra, 33 Cal.4th at p. 377.) “One factor alone may warrant imposition of the upper term [citation] and the trial court need not state reasons for minimizing or disregarding circumstances in mitigation [citation].” (People v. Lamb (1988) 206 Cal.App.3d 397, 401.)
In deciding to sentence appellant to the aggravated term, the trial court relied on the following factors: (1) appellant’s “prior convictions are numerous”; (2) appellant has “served prior prison terms”; (3) appellant “[h]as been on parole”; (4) appellant “[w]as on parole at the time the offense was committed”; (5) and appellant’s “[p]rior performance both on probation and parole have been unsatisfactory.” The court found no mitigating factors. The record reflects that the trial court considered and weighed the competing factors and concluded that appellant’s record justified the upper term. We conclude the trial court’s rationale to be reasonable; especially in light of the broad discretion afforded to sentencing courts.
Therefore, appellant has failed to meet his burden of “clearly show[ing] that the sentencing decision was irrational or arbitrary” and there has been no abuse of discretion. (Carmony, supra, 33 Cal.4th at pp. 376-377.)
Moreover, appellant’s contention that the trial court “erred when it ‘bundled’ its reasons for denying probation with those attributed to imposition of the aggravated term [,becauses]eparate analysis was necessary but did not occur” is unfounded. The trial court applied two separate analyses in denying probation and in its imposition of the aggravated term. The trial court first found no unusual circumstances, making appellant ineligible for probation, and then went on to list the factors in aggravation in support of its imposition of the upper term. Alternatively, even if the trial court did “bundle” its analysis, the trial court did not err because a fact used to determine probation eligibility, or to deny probation, may also be used to impose the upper term or to enhance (People v. Bowen (1992) 11 Cal.App.4th 102, 106), and appellant waived this claim by failing to object at trial (People v. Scott (1994) Cal.4th 331, 348-358).
DISPOSITION
The judgment is affirmed.
We concur: SEPULVEDA, J., RIVERA, J.