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People v. Newell

Court of Appeals of California, Fifth District.
Nov 10, 2003
No. F042534 (Cal. Ct. App. Nov. 10, 2003)

Opinion

F042534.

11-10-2003

THE PEOPLE, Plaintiff and Respondent, v. TAMMY LYNN NEWELL, Defendant and Appellant.

Danny D. Brace, Jr. for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Matthew L. Cate and Sharon E. Loughner, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

THE COURT

Before Vartabedian, Acting P.J., Wiseman, J. and Dawson, J.

Appellant Tammy Lynn Newell entered a no contest plea to two counts of sending a controlled substance into Corcoran State Prison in violation of Penal Code section 4573. She was sentenced to the middle term of four years—three years on one count and one year, consecutive, on the other—and contends the trial court erred first by denying probation and then by selecting the middle term. We will affirm.

FACTS

The facts, which are taken from the probation report and attachments, are as follows.

On or about May 15 and 21, 2002, appellant mailed envelopes containing methamphetamine to an inmate at Corcoran State Prison. She was accused of mailing additional envelopes, containing a controlled substance or paraphernalia, to the same inmate on four additional dates. Appellant admitted early in the investigation of this case that she had mailed methamphetamine on five separate occasions.

The investigation showed that, altogether, appellant sent just under 10 grams of methamphetamine into the prison, six grams of which related to the two charges to which she entered no contest pleas.

The inmate to whom appellant mailed the methamphetamine was Michael Ray "Renegade" Foster. Appellant first met Foster when she responded to an ad he placed in Biker magazine which stated that he was under a life sentence in prison and had two motorcycles he wanted to give away. Appellant and Foster corresponded and, eventually, began to discuss marriage. Foster told appellant he had a seven-year-old daughter whose mother had been killed, and appellant hoped to raise that child.

Foster apparently told appellant that he was a Hells Angel; that the Hells Angels wanted him to take responsibility for a criminal case in New York; that he needed money because his life, or that of his daughter, was in danger; and that methamphetamine would be of greater use to him than actual money.

The correspondence between Foster and appellant continued for approximately two years. Appellant alternately enjoyed her relationship with Foster and mistrusted both him and his advances. Eventually, she says, she was taken-in by him entirely and agreed to his plan for sending methamphetamine into the prison. She later learned, however, that much of what he had told her was false. She never received the motorcycles Foster had promised her, and she lost her life savings by sending money and goods to Foster.

A search warrant was served on June 14, 2002, at the home of a friend where appellant was staying temporarily; appellant was not present. Firearms and controlled substances were found in the friends home, but these discoveries were not charged against appellant. Appellant was subsequently arrested at the home of a second friend.

DISCUSSION

1. The trial court did not err in denying appellant probation.

Appellant contends that a sentencing court must consider all of the facts and circumstances surrounding the offense or offenses in choosing whether to grant or deny probation. Further, she contends, the court must not circumvent the plea bargain by way of its choices in sentencing. Both contentions are correct. (In re Cortez (1971) 6 Cal.3d 78, 86; People v. Green (1982) 142 Cal.App.3d 207, 216.)

Appellant does not, however, explain how the court below circumvented her plea bargain. The record reveals no promise to her regarding the grant or denial of probation or the selection of sentence. It does reveal that the court went beyond the two charges to which appellant entered her no contest pleas, and based its sentence in part on appellants "decision to mail contraband to an inmate in the state prison ... on a number of occasions." Defense counsel, however, did not object. While he pointed out that no Harvey[] waiver had been entered, he then went on to discuss the amounts of contraband involved in all of the charges, both dismissed and not dismissed. Under these circumstances, if the trial court erred in considering the dismissed counts, any error was waived. (See People v. Scott (1994) 9 Cal.4th 331, 353-355.)

People v. Harvey (1979) 25 Cal.3d 754.

Appellant does contend the trial court failed to consider her nominal criminal record; the relatively de minimus nature of her crimes when compared to others of the same sort; the fact that inmate Foster was the author of the criminal plan, while she simply followed his directions; and the fact that she was duped by Foster, which she contends is the equivalent of an unusual circumstance, like provocation, unlikely to recur. A review of the record, however, reveals that the court did consider all of these factors.

The court did note that appellant had only two misdemeanor convictions on her record, and no history of violent conduct. The court also noted, however, that for a number of years appellant had made poor choices in her selection of friends and associates, "evidencing either remarkably poor judgment or a disregard for a law abiding existence." The court viewed as telling the presence of firearms and controlled substances in the home where she was residing at the time of her arrest.

As to the assertion that appellants crimes were less serious than others of the same type, the trial court distinguished appellants conduct from a "crime of impulse" and looked instead to what it considered appellants "knowing, deliberate decision" to commit her crimes, stopping only when "apprehended by the authorities." It is evident from the trial courts comments that the court rejected any notion that appellants crimes were less serious than other violations of Penal Code section 4573.

Neither did the court accept the proposition that appellants conduct was provoked by inmate Foster and was unlikely to recur. The court stated it is not unusual for felons to "use people who have little or no prior record to facilitate the transport of the drugs into" a prison. The court felt bound, and was entitled, to consider the need to make appellants sentence an example to others. (See In re Foss (1974) 10 Cal.3d 910, 924 [deterrence is a legitimate purpose "behind the imposition of punishment by imprisonment"], disapproved on other grounds in People v. White (1976) 16 Cal.3d 791, 796, fn. 3.)

As to the alleged provocation by inmate Foster, the court simply rejected the idea that this was mitigating. Appellant cites, and this court is aware of, no authority which requires that, where a defendant puts forward an excuse for criminal conduct which does not amount to a defense, the sentencing court must accept that excuse in mitigation. In fact, the law is otherwise. (See People v. Salazar (1983) 144 Cal.App.3d 799, 813 ["A trial court may minimize or even entirely disregard mitigating factors without stating its reasons"].)

Finally, as to the last factor appellant asks this court to examine—whether the manner in which the crime was carried out demonstrated professionalism or criminal sophistication on her part—this court is reminded of the limitations imposed on appellate courts by the process of review. The record does reflect the following statement by the trial court made during the sentencing hearing: "It does appear that [appellant] was the person who thought up the plan or who initiated it." Further, as appellant notes, respondent provides nothing which would support such a conclusion. It is not clear to this court, however, that the trial court meant to say what is recorded in the transcript and did not, instead, mean to say that "It does NOT appear...." The trial courts next statement was that appellant "probably was initially led down the primrose path by the inmate...." In any event, the record reflects no objection by defense counsel, only his argument beforehand that appellant "wasnt the main planner and the most sophisticated person how this was supposed to work." Under these circumstances, it is not clear that, if there was an error, it was not waived. (See People v. Scott, supra, 9 Cal.4th at p. 353 [waiver doctrine applies where "the stated reasons allegedly do not apply to the particular case"].) What is clear, however, is that this issue was not crucial to the trial courts decision to deny probation. It was only one of the courts several reasons for that decision. We cannot say that, if error occurred, it is reasonably probable the trial court would make a different sentencing choice on remand. Thus, remand would be inappropriate. (People v. Porter (1987) 194 Cal.App.3d 34, 39.)

"A trial court has broad discretion in determining whether or not to grant probation. In reviewing that determination it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial courts order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances." (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825.)

Appellant has not carried her burden to show an abuse of discretion in the trial courts denial of probation.

2. The trial court did not err in selecting the middle term.

Though it was not required to do so (People v. Arceo (1979) 95 Cal.App.3d 117, 121), the trial court stated its reasons for selecting the middle term: "I would, in light of [appellants] expressed remorse and her early admission of culpability, impose the presumptive term rather than the aggravated term, as recommended." Appellant contends the court erred in not selecting the mitigated term. Much of this argument is a rehash of her argument concerning the denial of probation. We will refrain from following her lead. She does, however, add the following.

Primarily, appellant concentrates on the facts relating to inmate Foster and his deceptions. She contends this shows she acted under coercion and duress, the inducement of others, a desire to provide for the necessities of her family (her prospective husband and the child she wanted to raise), and a mental disability in that she was taken-in by Foster and unable to make rational decisions. As already discussed ante, however, the trial court was not required to accept—as opposed to consider—the excuse of Fosters conduct as mitigating. (People v. Salazar, supra, 144 Cal.App.3d at p. 813.) The trial court here appears to have considered the impact of Fosters conduct and, in the end, to have rejected it as a sufficient excuse for what the court considered very serious crimes. It is not for this court to say whether or not it would have made the same decision. Appellant must, but has failed to, show an abuse of discretion.

Appellant also contends the trial court erred in accepting the probation reports conclusion that there were two aggravating circumstances, the sophistication of the crime and the large quantity of contraband involved, and only one mitigating circumstance, appellants early admission of guilt. The record reflects, however, substantial support for the conclusion that this was a sophisticated crime. Even defense counsel acknowledged as much when he stated at sentencing, "theres numerous, including specific directions of whose name to put on the envelope, where they were supposed to be mailed to and from, its all outlined in his instructions, which unfortunately she followed." We cannot say that the record does not support the trial courts conclusion that appellant was a "vital cog ... in the carrying out of the plan." As to the amount of contraband involved, a review of the entire sentencing transcript gives no information about whether the trial court agreed it was large. Thus, the quantity of contraband appears to be a nonissue.

The question presented to this court is not whether we would have imposed the sentence imposed below. Rather, the question is whether the trial court abused its discretion, that is, whether the trial courts sentencing choice exceeds the bounds of reason. (People v. Giminez (1975) 14 Cal.3d 68, 72; People v. Sanchez (1982) 131 Cal.App.3d 718, 740.) We do not so find.

DISPOSITION

For all of the foregoing reasons, appellants conviction and sentence are affirmed.


Summaries of

People v. Newell

Court of Appeals of California, Fifth District.
Nov 10, 2003
No. F042534 (Cal. Ct. App. Nov. 10, 2003)
Case details for

People v. Newell

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. TAMMY LYNN NEWELL, Defendant and…

Court:Court of Appeals of California, Fifth District.

Date published: Nov 10, 2003

Citations

No. F042534 (Cal. Ct. App. Nov. 10, 2003)