Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Mendocino County Super. Ct. No. SCUK-CRCR-07-79121
Swager, J.
Defendant was convicted following a jury trial of one count of felony cruelty to an animal (Pen. Code, § 597, subd. (b)). Imposition of sentence was suspended by the trial court and defendant was placed on probation for three years on the condition, among others, that he serve one year in county jail. Defendant claims in this appeal that the court suspended sentence and imposed a lengthy term of probation for an improper purpose. We conclude that the trial court did not abuse its sentencing discretion, and affirm the judgment.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In light of the sentencing issue raised on appeal we will only summarily recite the facts pertinent to the animal cruelty offense of which defendant was convicted.
The record indicates that defendant was observed dragging a puppy attached to a rope leash or harness across the sidewalk and a parking lot, even after he was warned not to do so by a Ukiah police officer. The puppy, who was bleeding from all four paws, sustained torn or missing toenails and severe abrasions to her paws, in addition to abrasions on her legs and abdomen. The rope harness was wound very tightly around the puppy’s body. A trail of blood that measured 954 feet was visible where defendant had dragged the dog.
The probation report mentioned that defendant was “not a good candidate for a grant of probation” due to his protracted history of “numerous prior convictions” and “violations of probation,” along with his past “terrible” performance on probation. The report added that the present conviction did not warrant a “state prison sentence,” and a “lengthy felony probation term” would “most likely not be productive” or successful. Thus, the recommendation was made in the probation report for a 12-month grant of probation with 365 days in county jail, and termination of probation upon defendant’s completion of his county jail term.
Defendant suffered 20 misdemeanor convictions in the past 23 years. He was on probation when the present offense occurred.
At the sentencing hearing the trial court expressed more concern with defendant’s “record and his demonstrated inability to perform on probation,” than the severity of the offense as depicted in the “facts of the case.” The court agreed with defense counsel that a state prison term was “too excessive” for the “nature of the crime involved and the circumstances of the crime,” and thus adhered to the recommendation of a one-year term in county jail. But given defendant’s record the court indicated that “some leverage” on him was necessary to “change his conduct.” The court decided to suspend the imposition of sentence and place defendant on probation for the “longer period of time” of three years. The court stated that “the only condition under which” defendant would not be sent to “state prison at this time” was if he received probation for a three-year period. Defendant was admonished that with “state prison hanging over” him for three years he may serve a “state prison” term “as a consequence of this conviction” if he violated the terms of probation. The court also advised defendant that incarceration in state prison was “entirely within his control,” and would result if he “continues to violate the law.” Defendant informed the court of his understanding that he would “find [him]self in state prison as a consequence” of “violating terms of probation or committing further offenses.”
At a subsequent hearing to review and set the terms of probation, defense counsel and the probation department reiterated the concern that imposition of a three-year probationary term on defendant was “setting him up for failure,” in light of his prior record of repeated noncompliance. Defense counsel then reviewed the terms and conditions of probation with defendant. Defendant told the court that he understood and accepted the terms of probation. He specifically acknowledged that violation of probation could result in immediate imposition of the state prison term.
DISCUSSION
Defendant argues that the trial court exercised its sentencing discretion “on an improper basis.” He points out that the sentencing court imposed the lengthy probationary term despite “agreement with the probation report” that the facts of the case did not justify “a prison sentence,” and the acknowledgement that he “was not a good candidate for probation.” He therefore argues that the sentence choice of “long-term probation” was designed for the “improper purpose” of forcing him “to change his behavior.” He asks us to remand the case for resentencing.
We undertake a constrained review of the sentence imposed on defendant. “ ‘ “[T]he severity of the sentence and the placing of defendant on probation rest in the sound discretion of the trial court . . . .” ’ [Citation.]” (People v. Tang (1997) 54 Cal.App.4th 669, 679.) “Our function is to determine whether the . . . court’s order is arbitrary or capricious, or ‘ “exceeds the bounds of reason, all of the circumstances being considered.” ’ [Citation.]” (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831.) “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.]” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977–978.) “ ‘[A] “ ‘decision will not be reversed merely because reasonable people might disagree. . . .’ ” ’ [Citation.]” (People v. Stuart (2007) 156 Cal.App.4th 165, 179.) “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.]” (People v. Downey (2000) 82 Cal.App.4th 899, 910.)
We commence our analysis by observing that the court properly considered the facts relating to the crime and the defendant in reaching its decision to grant or deny probation and select the length of the probationary term (Cal. Rules of Court, rule 4.414). The trial court assessed the information and recommendations in the probation report submitted at the sentencing hearing, but was not required to follow the recommendations in the report. (People v. Warner (1978) 20 Cal.3d 678, 683; People v. Downey, supra, 82 Cal.App.4th 899, 910.) The court also gave a lengthy and reasoned explanation for its sentence choice, which reveals that defendant was not punished more severely to rectify a perceived failure of the criminal justice system to deal harshly enough with him for “past crimes,” as was found to constitute an “improper basis” for exercising sentencing discretion in People v. Molina (1977) 74 Cal.App.3d 544, 553, 552. Nothing in the record before us indicates that prior inadequate punishment of defendant was mentioned as a sentencing consideration. Instead, the court fully assessed defendant’s background, the nature of his current offense, and the individualized considerations of the pattern and extent of his criminal history. (See People v. Barrera (1999) 70 Cal.App.4th 541, 554.)
The court’s sentencing decision primarily rested on defendant’s recidivism and the need to protect the public by seeking to provide a deterrent to future criminality. Protecting society, encouraging defendant to lead a law-abiding life in the future, and deterring him from future offenses with the prospect of a state prison term for a violation of probation were legitimate sentencing objectives. (See Cal. Rules of Court, rule 4.410; People v. Stuart, supra, 156 Cal.App.4th 165, 187; People v. Weaver (2007) 149 Cal.App.4th 1301, 1312; People v. Smith (2003) 110 Cal.App.4th 1072, 1080.) The sentencing judge’s professed subjective belief as to the nature and length of the sentence necessary to carry out those sentencing objectives was not improper where it was guided by the discretion outlined in the specified statutory sentencing criteria. (People v. Castaneda (1999) 75 Cal.App.4th 611, 614.) We find no abuse of discretion in the trial court’s sentencing decision.
Accordingly, the judgment is affirmed.
We concur: Marchiano, P. J., Margulies, J.