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People v. Martin

Court of Appeals of California, Third Appellate District, Butte.
Nov 26, 2003
C044439 (Cal. Ct. App. Nov. 26, 2003)

Opinion

C044439.

11-26-2003

THE PEOPLE, Plaintiff and Respondent, v. ROBERT B. MARTIN, Defendant and Appellant.


Defendant Robert B. Martin appeals his conviction for possession of cocaine. (Health & Saf. Code, § 11350, subd. (a).) After three times violating the probation for which he was eligible under Proposition 36, defendant was sentenced to the upper term of three years.

His sole contention on appeal is that the trial court abused its discretion in deciding to impose the upper term because it "ignored" two factors in mitigation.

We shall conclude defendant has waived any error in sentencing by failing to raise the issue at trial pursuant to People v. Scott (1994) 9 Cal.4th 331 (Scott), and in any event, there was no abuse of discretion.

FACTS AND PROCEDURAL BACKGROUND

Police, acting on a tip about an anticipated drug deal, received defendants consent to search his car, where they found three rock-like pieces of cocaine and a glass smoking device. In his motel room, officers found a metal smoking device and two hypodermic syringes. In a negotiated plea, defendant pleaded no contest to possession of cocaine (Health & Saf. Code, § 11350, subd. (a)); charges he possessed a smoking device (Health & Saf. Code, § 11364) and a hypodermic needle (Bus. & Prof. Code, § 4140) were dismissed.

The trial court suspended imposition of sentence and placed defendant on formal probation for three years pursuant to Proposition 36.

Thereafter, defendant twice admitted allegations he violated his probation, and his probation was twice reinstated.

The third time defendant admitted allegations he violated his probation, the court terminated his probation and scheduled a sentencing hearing.

The probation report indicated the aggravating circumstances in this case were defendants unsatisfactory performance on his current grant of probation, his prior prison sentence, and his extensive criminal history, including convictions for violent crimes. No mitigating factors were identified.

Defendant submitted a one-page written statement to the probation department, together with a multipage letter to the court, both of which were included in the probation report. In those documents, he acknowledged his addiction, sought admission to a residential recovery program, expressed remorse, and indicated his willingness to "take full [responsibility] for all that has been wrong," including his drug use ("no one held a gun to my head or a crank pipe to my mouth") and probation violations.

Prior to sentencing, the trial court stated it had read and considered the probation officers report and intended to impose the upper term of three years for the cocaine possession charge. The prosecutor urged the trial court to follow the probation officers recommendation, based on defendants "performance on probation and a prior prison term [that] was stricken prior to the plea negotiation; [and] his long record including violence." Defendant spoke about his efforts to obtain residential drug treatment, and defense counsel urged the court to provide a "final opportunity" for residential treatment and emphasized defendants willingness to "take responsibility for his actions, [and express] remorse for what he did . . . ."

The court then sentenced defendant to the upper term of three years on the cocaine possession charge, finding "the upper term to be appropriate because circumstances in aggravation and [sic] outweigh those in mitigations which is proven by a preponderance of the evidence. And those include and are not limited to the fact that the defendant has a significant prior criminal record including at least three prior felony convictions, performance on his current grant of probation was more than unsatisfactory. He absconded twice."

DISCUSSION

Defendant contends the trial court abused its discretion in "cit[ing] no factors whatever in mitigation" when it selected the upper term.

In his view, the court should have considered (1) that he "`voluntarily acknowledged wrongdoing prior to arrest or at an early stage in the criminal process" (pursuant to Cal. Rules of Court, rule 4.423(b)(3)), as demonstrated by the fact he acknowledged ownership of the seized contraband at the time of his arrest and acknowledged responsibility to the probation officer when he was interviewed; and (2) whether his addiction to drugs reduced his culpability for the crime (pursuant to Cal. Rules of Court, rule 4.423(b)(2)).

A remand for resentencing is required when the court fails to consider relevant mitigating factors. (People v. Kelley (1997) 52 Cal.App.4th 568, 582 (Kelley).) But "objections concerning the manner in which the trial court exercises its sentencing discretion and articulates — or fails to articulate — its supporting reasons cannot be raised for the first time on appeal . . . ." (People v. Davis (1995) 10 Cal.4th 463, 552, citing Scott, supra, 9 Cal.4th at pp. 357-358 [waiver doctrine applies to claims the trial court "misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons" for its sentencing choices]; see also Kelley, supra, 52 Cal.App.4th at pp. 581-582 [contention court failed to consider mitigating factors waived].)

Neither defendant (nor counsel on his behalf) objected at his sentencing hearing that the trial court failed to consider in mitigation his admitted ownership of the cocaine and his addiction. Having failed to bring to the courts attention his claim it accorded too little weight to these mitigating factors, defendant cannot argue them now.

To avoid the waiver rule of Scott and its progeny, defendant relies on the following language in Scott: "Of course, there must be a meaningful opportunity to object to the kinds of claims otherwise deemed waived by todays decision. This opportunity can occur only if, during the course of the sentencing hearing itself and before objections are made, the parties are clearly apprised of the sentence the court intends to impose and the reasons that support any discretionary choices." (Scott, supra, 9 Cal.4th at p. 356.) Defendant argues he was denied a meaningful opportunity to object because the court did not announce the reasons for its sentencing choice when it declared its tentative intention to impose the upper term and invited comment.

Defendants reading of Scott is too narrow. "[A] meaningful opportunity to object means that the defendant be given the opportunity to address the court on the matter of sentence and to object to any sentence or condition thereof imposed by the court. In short, it refers to procedural due process which, although not subject to precise definition [citation], requires notice and an opportunity to be heard." (People v. Zuniga (1996) 46 Cal.App.4th 81, 84 (Zuniga).) Thus, a "meaningful opportunity to object" to the courts sentencing choices within the meaning of Scott has been provided if the defendant "was in court with counsel, was given the opportunity to address the court on the sentencing issue, heard the court pronounce sentence, stated that he understood it, and voiced no objections" and "[n]othing in the record suggests that [defendant] or defense counsel was precluded from objecting to the sentence or was in any way denied a meaningful opportunity to state his case for an alternative sentence or question the courts reasons" for imposing sentence. (Zuniga, supra, 46 Cal.App.4th at p. 84 [holding that advance notice of the courts intention in the form of a tentative decision is not necessary to "meaningful opportunity"]; see also People v. Gonzalez (2003) 31 Cal.4th 745, 748 [same].)

Here, defendant was provided an opportunity to be heard "`at a meaningful time and in a meaningful manner." (Zuniga,supra , 46 Cal.App.4th at p. 84.) Although he was present in court for the express purpose of hearing and responding to the trial courts intended sentencing, defendant did not ask the court to state its reasons after it announced its selection of the upper term, nor did he seek to address the reasons after the court announced them. Even after the court articulated its reasons for selecting the upper term, he did not object that the court failed to consider defendants admitted ownership of the cocaine and addiction. The hearing continued with discussions of defendants desire for placement at the California Rehabilitation Center and the calculation of his conduct credits; nothing in the record suggests defendant was precluded then from objecting to the sentence or denied an opportunity to question the courts reasons for imposing the upper term. (Cf. Zuniga, supra, 46 Cal.App.4th at p. 84.) Accordingly, the issue is waived.

Even if it were not waived, defendants contention lacks merit.

When a statute specifies three possible terms, the court shall impose the middle term unless there are circumstances in aggravation or mitigation of the crime that justify the imposition of the lower or upper term. (Pen. Code, § 1170, subd. (b); see also People v. Nguyen (1999) 21 Cal.4th 197, 201; People v. Leung (1992) 5 Cal.App.4th 482, 508.)

But sentencing courts have wide discretion in weighing aggravating and mitigating factors. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.) A single factor in aggravation is sufficient to justify the imposition of the upper term (People v. Cruz (1995) 38 Cal.App.4th 427, 433), and the court may "minimize or even entirely disregard mitigating factors without stating its reasons" (People v. Salazar (1983) 144 Cal.App.3d 799, 813). "`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 legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citation.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) Thus, the sentencing court is deemed to have considered all relevant mitigating factors unless the record affirmatively shows otherwise. (Cal. Rules of Court, rule 4.409; People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 836.)

Assuming the mitigating factors defendant identifies on appeal are relevant, there is no evidence the trial court failed to consider them. To the contrary, the court indicated it read the probation officers report — which contained defendants written statements highlighting his willingness to take responsibility and status as an addict — before determining that the factors in aggravation "outweigh[ed] those in mitigation[.]"

Finally, the court did not abuse its discretion in imposing the upper term in light of the several aggravating factors that apply to defendant, including that he served a prior prison term (Cal. Rules of Court, rule 4.421(b)(3)), has a significant prior criminal record (Cal. Rules of Court, rule 4.421(b)(2)), and performed unsatisfactorily on his recent grant of probation (Cal. Rules of Court, rule 4.421(b)(5)).

Defendants contention has no merit.

DISPOSITION

The judgment is affirmed.

We concur: BLEASE, Acting P.J., ROBIE, J. --------------- Notes: "Proposition 36, which was approved by the voters at the November 7, 2000, General Election, requires a trial court to sentence a defendant convicted of nonviolent drug offenses to probation, provided there are no disqualifying conditions." (People v. Superior Court (Jefferson) (2002) 97 Cal.App.4th 530, 535 (Jefferson).) The provisions of Proposition 36 are codified in Penal Code sections 1210, 1210.1, and 3063.1, and in division 10.8, commencing with section 11999.4, of the Health and Safety Code. (Jefferson, supra, 97 Cal.App.4th at p. 535.)


Summaries of

People v. Martin

Court of Appeals of California, Third Appellate District, Butte.
Nov 26, 2003
C044439 (Cal. Ct. App. Nov. 26, 2003)
Case details for

People v. Martin

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROBERT B. MARTIN, Defendant and…

Court:Court of Appeals of California, Third Appellate District, Butte.

Date published: Nov 26, 2003

Citations

C044439 (Cal. Ct. App. Nov. 26, 2003)