Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County, No. DF008799A, L. Bryce Chase, Judge.
David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Gomes, Acting P.J., Dawson, J., and Kane, J.
In the instant case (No. DF008799A), a jury convicted appellant, Cesar Mendez, of receiving stolen property (count 1/Pen. Code, § 496, subd. (a)), possession of burglary tools (count 2/§ 466), vehicle tampering (count 3/Veh. Code, § 10852), and attempted theft (count 4/§§ 664/488). On August 18, 2008, the trial court sentenced Mendez to the mitigated term of 16 months on his receiving stolen property conviction, concurrent 30-day terms on his convictions in counts 2 and 3, and a stayed term on count 4. The court ordered the concurrent terms in the instant case to run concurrent to a four-year term Mendez received on his conviction for assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)) in case No. DF008290A. On appeal, Mendez contends the court abused its discretion when it denied his motion to reduce his receiving stolen property conviction to a misdemeanor. We will affirm.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTS
Just after midnight on March 29, 2008, Delano Police Officer Andrew Souza saw a van with a missing gas cap and another vehicle in a vacant parking lot. Mendez was standing at the rear of the van. As Souza pulled into the lot, Mendez looked in his direction and immediately began walking away at a fast pace. Souza pulled up behind Mendez, exited his car, and asked Mendez to walk back toward the patrol car. Mendez walked toward Souza carrying a large trash bag that he claimed he found while “dumpster diving.” Souza asked Mendez if the van belonged to him and he said it did not. Souza searched Mendez and found a folded knife and a screwdriver in his pocket. Inside the trash bag, Souza found a gas cap and a gas can. A second gas can was located on the ground in front of the second vehicle in the parking lot. Souza took the gas cap from the bag and screwed it on to intake tube of the van’s gas tank. The plastic string attached to the cap had been cut. The cut portion of this string appeared to match up to a plastic string attached to the intake tube that had also been cut.
Mendez’s probation report indicates that in 1994, he was adjudicated as a juvenile for vehicle theft (Veh. Code, § 10851). In 1997, he was convicted of exhibition of speed (Veh. Code, § 23109, subd. (c)), in 1999, of being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), in 2004, of violating a court order (§ 273.6), in 2006 of possession of an unlawful weapon (§ 12020, subd. (a)) and being under the influence of a controlled substance, and, in 2007, of felony assault in case No. DF008290A and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). Mendez was on probation for assault and two misdemeanor offenses when he committed the instant offense.
On June 27, 2008, defense counsel a filed motion to reduce Mendez’s felony receiving stolen property conviction to a misdemeanor arguing that the minimal value of the stolen gas cap he possessed warranted a reduction of this conviction to a misdemeanor.
At Mendez’s sentencing his defense counsel argued in favor of the motion by reiterating that the value of the stolen gas cap was minimal. The prosecutor argued that the motion should be denied because Mendez was attempting to steal anything he could find in the van as well as the gas cap, he committed a new offense shortly after being released from custody in the assault case, and he had not benefited from the court’s leniency in that case.
The court noted that possession of a stolen gas cap does not usually result in a felony charge of receiving stolen property and that Mendez’s other offenses involved misdemeanor conduct. It then stated,
“So, this boils down to this defendant, who he is, what his history is and whether he’s deserving as [the prosecutor] points out, the largess[e] of the Court or not. I think we can all concede that one of the many factors that go into sentencing and many of the factors that we consider in sentencing I think are appropriate to consider when you’re talking about [a] motion to reduce the charge; factors that mitigate which suggest that maybe a charge should be reduced, and factors that aggravate, suggest that perhaps a charge... should be treated as a felony. And in conjunction with deciding what to do with this case, whether it should be reduced to a misdemeanor, I’m looking at the facts of the felony that he was on probation for, that he was sentenced on.… [¶] … [¶]
“… Looks to me that he’s lucky he got felony probation on that because shots were fired, police go to a residence - - I’m looking at the probation office report DF8290, police respond to [a] subject, they were dispatched to [a] residence for [a] subject allegedly under the influence. They made contact with Mr. Mendez, a confrontation occurs, [the] defendant has ironically a screw driver in his hand, it was positioned in his hand as if he were going to throw it at the officer. ‘Defendant stood up, was about to throw the screwdriver --’ I’m reading, ‘the officer, when the officer moved, fired one shot at the defendant. The officer heard the wind of the screw driver as it passed his head. After the screwdriver was thrown, defendant picked up [a] cement brick, began yelling, [the] defendant began running at the officer as he was, as if he was going to throw the brick; at which time the officer fired another round. The defendant continued to advance towards the officer with the brick in the air. [The] [o]fficer fired two more rounds, [the] defendant fell down to the ground.… [A]dditional officers arrived, ordered the defendant to release the brick, however, he refused and then there was a struggle and defendant was … arrested, [and] ultimately placed in custody.’”
The court also noted that Mendez’s receiving stolen property offense occurred soon after he benefited from the leniency of the court by being placed on probation in the assault case and it denied the Mendez’s motion.
DISCUSSION
“[S]ection 17, subdivision (b) (hereafter section 17(b)), authorizes the reduction of “wobbler” offenses-crimes that, in the trial court’s discretion, may be sentenced alternately as felonies or misdemeanors-upon imposition of a punishment other than state prison [citation] or by declaration as a misdemeanor after a grant of probation [citation].” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974.)
“[S]ection 17(b), read in conjunction with the relevant charging statute, rests the decision whether to reduce a wobbler solely ‘in the discretion of the court.’ By its terms, the statute sets a broad generic standard. [Citation.] The governing canons are well established: ‘This discretion... is neither arbitrary nor capricious, but is an impartial discretion, guided and controlled by fixed legal principles, to be exercised in conformity with the spirit of the law, and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citations.]’ [Citation.] ‘Obviously the term is a broad and elastic one [citation] which we have equated with “the sound judgment of the court, to be exercised according to the rules of law.” [Citation.]’ [Citation.] Thus, ‘[t]he courts have never ascribed to judicial discretion a potential without restraint.’ [Citation.] ‘Discretion is compatible only with decisions “controlled by sound principles of law,... free from partiality, not swayed by sympathy or warped by prejudice....” [Citation.]’ [Citation.] ‘[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.’ [Citation.]
“On appeal, two additional precepts operate: ‘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.] Concomitantly, ‘[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.” [Citations.]’ [Citation.]
“We find scant judicial authority explicating any criteria that inform the exercise of section 17(b) discretion. … However, since all discretionary authority is contextual, those factors that direct similar sentencing decisions are relevant, including ‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial.’ [Citations.] When appropriate, judges should also consider the general objectives of sentencing such as those set forth in California Rules of Court, rule 410. The corollary is that even under the broad authority conferred by section 17(b), a determination made outside the perimeters drawn by individualized consideration of the offense, the offender, and the public interest ‘exceeds the bounds of reason.’” (Alvarez, supra, 14 Cal.4th at pp. 977-978, fn. omitted.)
The record discloses that the trial court engaged in a thorough, thoughtful analysis of appropriate circumstances before denying Mendez’s motion to reduce his receiving stolen property offense to a misdemeanor. In ruling on Mendez’s motion the court considered his criminal history and focused on the circumstances of his instant offenses and his assault offense. The court concluded that Mendez’s assault offense was particularly egregious because Mendez attempted to assault one of the responding officers with a screw driver and a cement brick requiring the officer to fire several rounds at Mendez, striking him once. Further, even after he was wounded and fell to the ground, Mendez continued to struggle with the officers as they attempted to take him into custody. The court also noted that notwithstanding the seriousness of his assault case, Mendez received very favorable treatment in that case by being granted probation and that his instant offenses occurred soon after he received this favorable disposition. Thus, even though the receiving stolen property offense involved only a gas cap, the court denied the motion because it felt Mendez did not deserve further leniency from the court.
Mendez contends his receiving stolen property offense did not warrant felony treatment because the gas cap at issue was worth only a few dollars. However, the value of the gas cap was only one of a myriad of circumstances the court was entitled to consider in ruling on Mendez’s motion. Moreover, although Mendez attempts to downplay the seriousness of his receiving stolen property offense, the court could reasonably conclude from the record that Mendez was in the process of stealing gas from and burglarizing the two vehicles in the parking lot when he was interrupted by Officer Souza. Accordingly, we conclude that the court did not abuse its discretion when it denied Mendez’s motion to reduce his receiving stolen property conviction to a misdemeanor.
DISPOSITION
The judgment is affirmed.