Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. NA077670, Laura L. Laesecke, Judge.
Jennifer Gerard, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Blair Anthony Hays appeals from the judgment entered following revocation of probation, which had been granted after his plea of no contest to being a felon in possession of a firearm. The trial court sentenced Hays to two years in prison. Hays’s sole contention on appeal is that the trial court abused its discretion by refusing to reinstate probation. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Hays’s 2008 conviction.
In 2008 Hays was charged in case No. NA077670 with being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) and possession of ammunition (§12316, subd. (b)(1)). On July 29, 2008, Hays pleaded no contest to violating section 12021. The possession of ammunition charge was dismissed pursuant to a negotiated disposition. Sentence was suspended and Hays was placed on probation for three years. Among other things, as conditions of probation Hays was required to perform 30 days of “Cal Trans” service and obey all laws.
All further undesignated statutory references are to the Penal Code.
2. Hays’s 2009 arrest and revocation of probation.
In May 2009, Hays was arrested for and charged with misdemeanor driving under the influence. (Veh. Code, 23152, subds. (a) & (b).) The charge was eventually dismissed pursuant to section 1382 [requiring dismissal when the defendant is not brought to trial within the statutorily prescribed period].) Based on Hays’s arrest, probation revocation proceedings commenced. At a probation revocation hearing, the People presented evidence establishing that on the evening of May 15, 2009, Hays drove a motorcycle in Long Beach while under the influence of alcohol, with a blood alcohol level of.11. The trial court found Hays in violation of probation.
At a subsequent sentencing hearing, the People argued that Hays was presumptively ineligible for probation due to his prior felony convictions. Hays, on the other hand, argued that his case was unusual and probation should be reinstated. He pointed out that he had completed his “Cal Trans” service. Moreover, he was employed and owned his own trucking business, which would suffer if he was incarcerated. Despite his pleas to the 2008 felon-in-possession case and a 2003 Nevada conviction for committing battery on a peace officer, he explained he was not actually guilty of the offenses. Many of his other convictions were remote in time. Further, when arrested for driving under the influence in 2009, his blood alcohol content had been relatively low, and he had not been in an accident or caused injury. He presented a variety of letters from family and friends attesting to his good character.
After considering the parties’ arguments, the probation report, and the letters submitted by Hays, the trial court sentenced Hays to the midterm of two years in prison. It acknowledged his completion of his “Cal Trans” service, and commended him for his business endeavors. On the other hand, it noted that Hays had paid only $150 on a $3,609 fee related to the underlying case. In regard to Hays’s explanations for the 2008 and the Nevada convictions, the court observed that Hays had voluntarily pleaded to the prior crimes and the court could not relitigate the facts. His criminal record was significant and made him presumptively ineligible for probation pursuant to section 1203. No mitigating factors existed to overcome section 1203’s statutory presumption or demonstrate probation was in the interests of justice.
Hays appeals.
DISCUSSION
1. Applicable legal principles.
Section 1203, subdivision (e) provides, in pertinent part, “[e]xcept in unusual cases where the interests of justice would best be served if the person is granted probation, ” probation “shall not be granted” to “[a]ny person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony.” (§ 1203, subd. (e)(4); see generally People v. Stuart (2007) 156 Cal.App.4th 165, 177.) Rule 4.413(c) of the California Rules of Court lists a variety of factors that “may indicate the existence of an unusual case.” Those factors include that: “(A) The fact or circumstance giving rise to the limitation on probation is... substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence; and [¶] (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(c)(1).) Rule 4.413 also lists several factors related to the defendant’s culpability, including that the defendant acted under great provocation or duress; the crime was committed due to a mental condition not amounting to a defense; or the defendant was youthful or elderly, and lacked a significant criminal record. (Rule 4.413(c)(2).) “Under rule 4.413, the existence of any of the listed facts does not necessarily establish an unusual case; rather, those facts merely ‘may indicate the existence of an unusual case.’ [Citation.]” (People v. Stuart, supra, at p. 178.) “ ‘[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 rule 4.413 is “ ‘limited to those matters in which the crime is either atypical or the offender’s moral blameworthiness is reduced.’ ” (Ibid.)
The decision to deny or grant probation generally rests within the broad discretion of the trial court, and its decision will not be disturbed on appeal absent a showing that the court exercised its discretion in an arbitrary or capricious manner. (People v. Downey (2000) 82 Cal.App.4th 899, 909.) A court abuses its discretion when its decision “ ‘exceeds the bounds of reason, all of the circumstances being considered.’ [Citation.] We will not interfere with the trial court’s exercise of discretion ‘when it has considered all facts bearing on the offense and the defendant to be sentenced.’ [Citation.]” (Id. at pp. 909-910; People v. Stuart, supra, 156 Cal.App.4th at p. 179; People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831; People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) We presume the trial court acted to achieve legitimate sentencing objectives in the absence of a clear showing the sentencing decision was irrational or arbitrary. (People v. Carmony (2004) 33 Cal.4th 367, 376-377; People v. Martinez (1985) 175 Cal.App.3d 881, 896.) A defendant bears a heavy burden when attempting to show an abuse of discretion. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311; People v. Aubrey (1998) 65 Cal.App.4th 279, 282.)
2. Application here.
Applying these principles here, Hays was presumptively ineligible for probation because he had suffered several prior felonies. A probation report prepared in 2008 indicated that, among numerous other convictions, Hays had suffered felony convictions for grand theft in 1985 (§ 487), possession of a controlled substance in 1986 (Health & Saf. Code, § 11351), and a Nevada conviction for battery on a public officer in 2003.
The probation report prepared for the 2010 probation revocation hearing is not included in the record on appeal. We granted Hays’s motion to augment the record, but the superior court clerk certified that the 2010 probation report is not in the case file.
Thus, Hays was eligible for probation only if he met the “heavy burden” to establish his was an unusual case, in which the interests of justice would have been served by reinstating probation. (See People v. Marquez (1983) 143 Cal.App.3d 797, 803.) He failed to do so. Nothing in the record suggests he acted under duress, because provoked, or due to a mental condition. He is neither youthful nor elderly, and has a significant criminal record. His criminal record, which gave rise to the limitation on probation, is not substantially less serious than the circumstances present in other cases in which the limitation applies. The 2008 probation report noted that Hays “has a history of taking vehicle[s] without permission, burglary, possession of controlled substance[s], driving with [a] suspended license. He appears to have a significant abuse problem that is ongoing and prior probation and parole grants have obviously not deterred his further abuse and criminality.” Although Hays attempted below to minimize his culpability for his 2008 felon-in-possession conviction and the 2003 Nevada conviction, the trial court was not obliged to credit Hays’s self-serving characterization of the circumstances in either case. As the trial court noted, Hays had pleaded to both offenses and the court was not in a position to “relitigate the facts.” (See generally People v. Stuart, supra, 156 Cal.App.4th at pp. 179-180, 181-182.)
Hays explained, in regard to the 2008 felon in possession charge, that he had borrowed a vehicle and was unaware a firearm was in the back seat. In regard to the Nevada conviction, he explained that he had not actually assaulted a peace officer. Instead, the charges stemmed from an incident in which an officer had attempted to break up a fight between Hays and another man that ensued over a boxing match bet.
Further, the trial court did not abuse its discretion by concluding no mitigating circumstances supported a grant of probation. The court considered the letters presented by Hays’s family and friends, found it “commendable” that Hays had his own trucking business, and favorably noted that he had completed his “Cal Trans” service. However, Hays cites no authority suggesting that these facts required a finding that his was an unusual case falling outside section 1203’s presumption. The court also noted that Hays had paid only $150 of a $3,609 fee on the underlying case, and concurred with the 2010 probation report’s conclusion that no mitigating factors existed. Hays’s citation to People v. Bolton (1979) 23 Cal.3d 208, is unavailing. Contrary to the facts in Bolton, the court in the instant matter did not base its sentencing decision on improper factors.
Hays argues that he was not a danger to society, and that the goals of rehabilitation and public safety would have been better served by reinstating probation than by sending him to prison. However, even if we were to agree with Hays’s contentions, 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 that of the trial court. (People v. Stuart, supra, 156 Cal.App.4th at p. 179; People v. Carmony, supra, 33 Cal.4th at p. 377.) The trial court in the instant matter considered the relevant factors, and its decision was neither arbitrary nor capricious. There was no abuse of discretion.
DISPOSITION
The judgment is affirmed.
We concur: CROSKEY, Acting P. J.KITCHING, J.