Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA337282, Tomson T. Ong, Judge.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A Taryle and E. Carlos Dominguez, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Jason Ortiz stepped out of his car after being stopped for traffic violations on March 4, 2008. Officers noticed that his car engine was still running, but there was no key in the ignition, which appeared to have been tampered with or “punched.” The car had been reported stolen. Defendant was arrested and convicted following a jury trial of unlawfully driving or taking a motor vehicle in violation of Vehicle Code section 10851, subdivision (a). He was sentenced to three years in state prison. On appeal, defendant contends the trial court abused its sentencing discretion, mistakenly believing it had no choice but to impose the upper term. We affirm the judgment.
Defendant is not claiming the imposition of the upper term violated his right to jury trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution as articulated in Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] and Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856, 166 L.Ed.2d 856].
FACTUAL AND PROCEDURAL BACKGROUND
The probation officer’s report recommended that defendant be granted probation, but noted if defendant were sentenced to state prison, several circumstances in aggravation and the lack of circumstances in mitigation would support the imposition of the upper term. As circumstances in aggravation, the report noted the unsuspecting victim, a non-English speaker, faced a financial hardship with the “total loss” of his car and was therefore “particularly vulnerable” (Cal. Rules of Court, rule 4.421(a)(3)); “[t]he manner in which the crime was carried out indicates planning, sophistication, or professionalism” (Cal. Rules of Court, rule 4.421(a)(8)); and the defendant’s “prior convictions as an adult... are numerous or of increasing seriousness” (Cal. Rules of Court, rule 4.421(b)(2)).
The probation officer’s report showed then 25-year-old defendant, who was unemployed, had one felony conviction and three misdemeanor convictions since 2001. His felony conviction was for selling marijuana in 2001, for which he was placed on three years of probation. His misdemeanor convictions were for driving on a suspended license (April 2006), assault on a police officer (July 2006), and burglary (December 2006). Defendant was on summary probation on two of those misdemeanor cases on March 4, 2008, when he committed the offense of unlawfully driving or taking a motor vehicle.
At sentencing on October 3, 2008, the trial court indicated it had read and considered the probation officer’s report and the People’s sentencing memorandum. After brief argument from defense counsel urging the court to grant defendant probation and local custody time, the court denied probation, concluding defendant would not comply with its terms. The court observed defendant had been on summary probation on two different cases when he committed the present felony offense. The court then stated, “Probation is declined because [defendant] has not been successful.... He needs to have a parole agent take care of him. The question is what kind of term, given his background and history in this particular case. The fact that he had a prior felony conviction and he was on active probation on two cases, each independently is the basis to impose the maximum term according to law.” Without defense objection, the court then sentenced defendant to the upper term of three years in state prison.
DISCUSSION
Defendant is not claiming the trial court abused its discretion in denying him probation or in imposing the upper term, or that the upper term was an unauthorized sentence. Instead, he argues for the first time on appeal, that the trial court failed to exercise its sentencing discretion, mistakenly believing it was required by law to impose the upper term “once it found there were aggravating circumstances outweighing mitigating circumstances.” However, defendant failed to object to the imposition of the upper term. Defense counsel was aware of the court’s sentencing choices and had a meaningful opportunity to object. By failing to object, defendant has forfeited his claim the trial court failed to exercise its discretion in imposing the upper term sentence. (People v. Velazquez (2007) 152 Cal.App.4th 1503, 1511-1512, citing People v. Scott (1994) 9 Cal.4th 331, 353 [“waiver doctrine should apply to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices”]; People v. Zuniga (1996) 46 Cal.App.4th 81, 84 [finding waiver when counsel had a meaningful opportunity to object to court’s sentencing choice but failed to do so].)
Failure to present a claim or objection in a timely fashion results in a “forfeiture,” rather than a “waiver,” of the point. (In re S. B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)
In any event, no reversible sentencing error occurred in this case. Effective March 30, 2007, Penal Code section 1170, subdivision (b), was amended to require a trial court to state its reasons for imposing a lower, middle, or upper term. (People v. Velasquez, supra, 152 Cal.App.4th at p. 1511, fn. 4.) That statute now provides: “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.... The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected....” (Pen. Code, § 1170, subd. (b); see People v. Lincoln (2007) 157 Cal.App.4th 196, 205.) “Only a single aggravating factor is required to impose the upper term[.]” (People v. Osband (1996) 13 Cal.4th 622, 728, citation omitted.)
Although “a ruling otherwise within the trial court’s power will nonetheless be set aside where it appears from the record that in issuing the ruling the court failed to exercise the discretion vested in it by law” (People v. Penoli (1996) 46 Cal.App.4th 298, 302, citations omitted), in this instance the record shows the trial court understood and appropriately exercised its sentencing discretion. After deciding against granting defendant probation, the trial court explicitly stated it had to decide upon which term to impose based on defendant’s background and criminal history. The court reasonably concluded the upper term was appropriate in view of defendant’s prior felony conviction and poor performance on probation.
“‘“[T]he 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.]” Furthermore, “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.’”’ [Citation.]” (People v. Carmony (2004) 33 Cal.4th 367, 376-377, quoting People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., ZELON, J.