Opinion
A153102
07-23-2018
THE PEOPLE, Plaintiff and Respondent, v. NATHAN JOHN, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CR942813)
Defendant Nathan John appeals from the imposition of a four-year sentence for bringing methamphetamine into the Lake County jail. He contends only that the trial court abused its discretion in imposing the aggravated term of imprisonment. There was no abuse and we shall affirm.
Background
In May 2016 defendant pled guilty to bringing a controlled substance into the jail (Pen. Code, § 4573), and other counts were dismissed. On August 8, 2016, pursuant to a plea agreement, imposition of sentence was suspended, defendant was placed on probation for three years subject to various conditions including service of 350 days in county jail. In March 2017 probation was reinstated following his admission to probation violations and, in October 2017, following a contested probation violation hearing, defendant was found to have again violated his probation in several respects. On November 28, 2017, the court denied his request to again reinstate probation and imposed the aggravated term of four years for the violation of Penal Code section 4573 with presentence credits of 532 days. Defendant timely filed a notice of appeal.
Discussion
The probation report prepared in June 2016 listed numerous factors in support of its recommendation that probation be denied, including the "likelihood the defendant will be a danger to others if not imprisoned is substantial, as the defendant has a history of violent conduct and gang affiliation." Citing California Rules of Court, rule 4.421(a)(10), (b)(2), (b)(4), and (b)(5), the report listed four circumstances in aggravation: the manner in which the crime was carried out indicates planning, the defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous, the defendant was on summary probation when the crime was committed, and the defendant's prior performance on summary probation was unsatisfactory. The report listed a single circumstance in mitigation, that defendant had voluntarily acknowledged wrongdoing at an early stage of the criminal process, and recommended imposition of the four-year upper term of imprisonment. The probation report prepared for the November 2017 sentencing stated the prior four-year recommendation "appears to remain appropriate" and made the same recommendation.
In imposing sentence the court recited, "In aggravation, the manner in which the crime was carried out does demonstrate some planning. He has the prior criminal record that I've indicated, including juvenile adjudications and adult convictions as outlined earlier. He's served the prior term in California Youth Authority [(CYA)]. He was on summary probation when the crime was committed. And his prior performance, and I'm just limiting this to what was evident at the time of original sentencing, his prior performance on summary probation was unsatisfactory."
Defendant acknowledges that the "sentencing court's decision identifies two circumstances in aggravation which are not in dispute, to wit: (1) that he was on probation when he committed this offense, and (2) that his prior performance on probation was unsatisfactory." Defendant contends that other aggravating factors were incorrectly considered and certain mitigating factors ignored, and that it is impossible to ascertain which factors were, or would have been, determinative, so that reversal or at least remand for resentencing is required. Even were we to agree with the premises of this argument, the argument would fail. "A single aggravating factor will support an upper term sentence." (People v. Weber (2013) 217 Cal.App.4th 1041, 1064.)
Moreover, we are not persuaded that the court wrongly considered any of the additional aggravating circumstances or overlooked any mitigating circumstances.
In addition, the Attorney General is likely correct that these contentions were forfeited by the failure to raise them in the trial court. (See People v. McCullough (2013) 56 Cal.4th 589, 593.) Defendant's reply brief does not respond to this argument. --------
Defendant disputes that his offense involved advance planning. But although he may not have planned to be arrested and booked in the county jail, he secreted a plastic bag containing contraband between his anus and testicles, undoubtedly for the purpose of avoiding detection in the event of a search by law enforcement authorities. Defendant does not dispute that he has numerous prior convictions and juvenile adjudications but argues that, primarily because of the passage of time, none show that he is presently a danger to others. But although the June 2016 probation report did indicate that defendant is such a danger as a reason for denying probation, dangerousness is not an element of the aggravating circumstance identified in California Rules of Court, rule 4.421(b)(2) and was not mentioned in the list of aggravating circumstances specified by the court.
Defendant contends the court improperly considered his 10-year commitment to the CYA for felony assault on an officer as one of his prior numerous offenses, but even though a CYA commitment is not a "prior term in prison or county jail under [Penal Code] section 1170(h)" within California Rules of Court, rule 4.421(b)(3), the court could nonetheless consider such an additional matter that is reasonably related to the sentencing decision. (Cal. Rules of Court, rule 4.408(a).)
Finally, defendant argues that the court failed to consider as mitigating factors that defendant's offense was "substantially less sophisticated and premeditated than normal," that he was under the influence of methamphetamine "when he neglected to admit during booking that he had a controlled substance concealed on his person," and "the extent to which [his] apparent addiction to methamphetamine reduced his culpability for this crime as well as his other adult offenses." However, although the court did not specifically state these were mitigating factors (assuming arguendo that they were), the court did indicate that it had reviewed both probation reports which disclosed these matters, there is no indication that the court did not consider them, and "there is no requirement the court indicate its reasons for rejecting a mitigating factor." (People v. Reid (1982) 133 Cal.App.3d 354, 371.)
Disposition
The judgment is affirmed.
/s/_________
Pollak, Acting P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.