Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FMB008660, Bert L. Swift, Judge.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Elizabeth S. Voorhies, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
INTRODUCTION
Alleging abuse of discretion, defendant Joseph Loya (defendant) seeks modification of his two-year prison sentence for possession of methamphetamine. We will affirm.
In view of defendant’s guilty plea, like the parties, we take the facts from the probation report.
About 9:00 p.m., on November 27, 2006, San Bernardino County Sheriff’s deputies found defendant in the driver’s seat of a vehicle parked on a dirt road in Twentynine Palms. Defendant appeared to be under the influence of a controlled substance and was unable to pass a field sobriety test. He told the deputies that he had used methamphetamine that morning and that he used it every morning “like his morning coffee.” Deputies found methamphetamine and drug-use paraphernalia in the center console of the vehicle.
A complaint filed December 21, 2006, charged defendant with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), a felony, count 1); possession of a smoking device (Health & Saf. Code, § 11364, subd. (a), a misdemeanor, count 2); and being under the influence of a controlled substance, methamphetamine (Health & Saf. Code, § 11550, subd. (a), a misdemeanor, count 3). On January 17, 2007, defendant pled guilty to count 1. The court dismissed counts 2 and 3. The plea agreement included a referral to a Proposition 36 (Pen. Code, § 1210.1) drug treatment program for the current conviction and for another pending drug-related case (case No. MMB011041). For the next three months, defendant failed to make his court appearances and did not contact probation. On March 15, 2007, he was terminated from the Proposition 36 program for nonattendance.
According to the Superior Court of San Bernardino County criminal case report Web site, of which—on our own motion—we hereby take judicial notice, case No. MMB011041 consisted of September 2005 charges for drug and drug paraphernalia possession (Health & Saf. Code, § 11364) and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)).
On May 7, 2007, the court found that defendant had refused treatment under the Proposition 36 program and referred him to the probation department for a presentence report. Defendant told the probation officer interviewing him that he had been using alcohol since the age of 15, marijuana since the age of 16, and methamphetamine for the past four years. The report, filed June 11, 2007, recommended that defendant continue on probation and participate in the “Drug Court Rehabilitation Program.” As sentencing factors relating to defendant, the report listed, among others, that he did not have a prior record of criminal conduct; that he had indicated a willingness to comply with probation; and that there was “little likelihood that[,] if not imprisoned, [he would] be a danger to others.”
On June 11, 2007, the court adopted the recommendation in the probation report, sentenced defendant to drug court, revoked his driver’s license, and placed him on probation for three years.
In October and November 2007, defendant was arrested for driving under the influence (DUI). A supplemental probation report filed in December recommended that he be terminated from drug court and sentenced to the upper term of three years in state prison.
At a sentencing hearing on December 18, 2007, the court indicated that it had read the latest probation report and invited comment from the parties. Defense counsel argued for the mitigated term of 16 months, pointing out that, “there [were] no factors in aggravation” and several in mitigation. Counsel noted that according to the probation report, his client had no prior record, had admitted wrongdoing at an early stage, and suffered from “a condition, addiction,” which was also a mitigating factor. The prosecutor argued that the court could reach its goal of giving a defendant, who had failed drug court, the maximum sentence for his original crime by imposing the middle term of two years for the current felony drug conviction, plus one consecutive year for the earlier case, for a total of three years.
Case No. MMB011041—see footnote 2, ante.
The court said it recognized that defendant “has had no prior record until this point in time,” and indicated that it would not run the sentences consecutively. But the trial court wondered whether it could “consider the fact of driving under the influence as a danger to the public in an aggravating circumstance in this case.” The probation officer agreed that the presentence report “didn’t find any factors in aggravation,” but noted that defendant had been found inside the vehicle on the driver’s side and with methamphetamine. With the two recent DUIs, “that would be [the] third time” defendant had chosen to drive under the influence. Nonetheless, “probation’s not opposed to a midterm sentence, given the fact that he doesn’t have any prior record....” The People too were “not opposed to the midterm as being the appropriate outcome of this felony matter,” but wondered again if the court would maintain its past position that defendants who violated probation by failing drug court would receive the maximum sentence.
The court sentenced defendant to the “midterm of two years” in the current case and—apparently in view of the clerk’s comment that the misdemeanor in case No. MMB011041 had been dismissed on January 17, 2007, because defendant “was successful in the deferred entry of judgment program”—did not sentence him on that matter.
In fact, the referenced minute order appears to have been mistaken. The misdemeanor charges in the current case, counts 2 and 3, were dismissed on January 17, 2007, but those in case No. MMB011041 were not. There was no indication that defendant had been successful in the earlier diversion program—only that it had been folded into the Proposition 36 program.
DISCUSSION
Defendant contends that the trial court abused its discretion by sentencing him to the midterm rather than the low term because the mitigating factors, “clearly, substantially and [u]ndisputedly outweighed the non-existent aggravating factors.” We disagree.
Standard of Review
A trial court has wide discretion in sentencing matters and may balance aggravating and mitigating factors against each other by qualitative as well as quantitative measures. Absent a clear showing that a sentencing decision is arbitrary or irrational, it will be upheld. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582-1583.)
Length of Sentence
“When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.” (Pen. Code, § 1170, subd. (b).) In determining whether there are circumstances that justify imposition of the upper or lower term, the court may consider the record in the case, the probation officer’s report, other reports and statements in aggravation or mitigation submitted by the prosecution, the defendant and any further evidence introduced at the sentencing hearing. (Pen. Code, § 1170.)
Here, the court acted well within its discretion in choosing the middle term—the default rule under subdivision (b) of Penal Code section 1170—as the appropriate term of imprisonment for defendant. It is true, as defendant contends, that the court was required to choose the sentence based upon circumstances as they existed at the time of his original sentencing, not counting his subsequent poor compliance with the terms of his probation. (Cal. Rules of Court, rule 4.435(b)(1); People v. Goldberg (1983) 148 Cal.App.3d 1160, 1163.) But the circumstances as they existed at the time of his current offenses justified the court’s choice. The first thing the probation officer did, when the court asked if it could consider DUI as an aggravating sentencing factor, was to point out that at the time of his arrest, defendant was sitting in the driver’s seat of a vehicle and that methamphetamine was found there with him. This, not the October and November 2007 offenses, was the “DUI” that served as an aggravated circumstance supporting the court’s choice to sentence defendant to the upper term. The court could reasonably conclude from the fact that defendant was sitting in the driver’s seat that he had either driven or was going to drive the vehicle and that his driving would endanger the public. The court could not only consider this as an aggravating factor, there was no reason it could not consider it a qualitative factor that outweighed the three so-called “mitigating” factors identified by defense counsel.
Moreover, the probation report was incorrect in stating that defendant had “no known prior record.” He had a record of drug and drug paraphernalia possession from September 2005 as reflected in the ongoing matter of case No. MMB011041.
Finally, the probation report was arguably also incorrect in stating that defendant represented no danger to the public. As explained above, as a driving drug user, he certainly represented a danger to the public. This was the reason his license had been revoked in June 2007.
In sum, the mitigating factors did not, as he claims, clearly, substantially, or undisputedly outweigh the aggravating factors in defendant’s case and the court did not abuse its discretion in so concluding.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER, J., RICHLI, J.