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People v. Osorio-Blanco

Court of Appeal of California
Jul 30, 2008
No. A120729 (Cal. Ct. App. Jul. 30, 2008)

Opinion

A120729

7-30-2008

THE PEOPLE, Plaintiff and Respondent, v. HUMBERTO EULALIO OSORIO-BLANCO, Defendant and Appellant.

Not to be Published


Appellant Humberto Eulalio Osorio-Blanco pleaded no contest to felony driving with a blood alcohol level of .08 or higher (Veh. Code § 23152, subd. (b) ). The court denied probation and sentenced appellant to state prison. On appeal, appellant contends that the courts denial of probation was an abuse of discretion.

Unless otherwise noted, all further statutory references are to the Vehicle Code.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of December 11, 2007, appellant was driving in Sonoma County when he was involved in a traffic accident. A California Highway Patrol officer investigating the accident noticed that appellants eyes were red and watery and that he smelled of alcohol. Appellants blood-alcohol level at the time of the incident was .11%.

The People charged appellant with felony driving under the influence of alcohol (§ 23152, subd. (a)), felony driving with a blood alcohol level of .08 or higher (§ 23152, subd. (b)), and misdemeanor driving with a suspended license (§ 14601.2, subd. (a)). The People also alleged that appellant had three prior convictions for driving with a blood alcohol level of .08 or higher (§ 23152, subd. (b)) within the last ten years.

On December 26, 2007, appellant pleaded no contest to driving with a blood alcohol level of .08 or more (§ 23152, subd. (b)) and admitted the prior convictions. On February 7, 2008, the court denied probation and sentenced appellant to 16 months in state prison with credit for 87 days served. At the sentencing hearing, the court told appellant: ". . . I spent a lot of time thinking about your case, because I realize that when youre not drinking, youre a hard-working man who takes care of his family. [¶] But I cannot justify the risk [to] the community based on granting probation to somebody who has six DUI priors. So Im going to deny probation in this case." The court, however, gave appellant the low term because he "resolved this case at an early stage of the proceedings and his prior[] [convictions], though numerous, are spread over a considerable length of time."

At the time of the accident, appellant had six prior misdemeanor convictions for driving under the influence. These convictions occurred in 1988, 1989, 1993, 1998, 2003, and in 2007. Appellant was subject to a grant of conditional sentence seven times. He reoffended four of these times.

Appellant timely appealed.

DISCUSSION

Appellant argues that the sentencing courts decision to deny probation was an abuse of discretion. It is well settled that the "grant or denial of probation is within the trial courts discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion." (People v. Aubrey (1998) 65 Cal.App.4th 279, 282; People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) A court abuses its discretion when its order is "arbitrary or capricious, or `exceeds the bounds of reason, all of the circumstances being considered." (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 831, quoting People v. Warner (1978) 20 Cal.3d 678, 683.)

To determine whether to place a defendant on probation or to impose a sentence, the court must consider "facts relating to the crime and facts relating to the defendant." (Cal. Rules of Court, rule 4.414.) The facts relating to the defendant include, but are not limited to, the defendants prior record; his or her prior performance on probation and willingness and ability to comply with terms of probation; the likely effect of imprisonment on the defendant and his or her dependents; and the likelihood the defendant will be a danger to others if he or she is not imprisoned. (Cal. Rules of Court, rule 4.414(b).) The court must state "the primary factor or factors that support the exercise of discretion" (Cal. Rules of Court, rule 4.406) but the court need not address the factors advanced by the defendant in his or her request for probation. (People v. Simon (1983) 144 Cal.App.3d 761, 766-767; People v. Holguin (1989) 213 Cal.App.3d 1308, 1317; Cal. Rules of Court, rule 4.409.) The court is deemed to have considered the criteria listed in the sentencing rules "unless the record affirmatively reflects otherwise." (Cal. Rules of Court, rule 4.409; Alvarez, supra, 14 Cal.4th at pp. 977-978; Du, supra, 5 Cal.App.4th at p. 836.)

Appellant complains that the court based its decision to deny probation solely on the risk appellant would pose to the community if he were granted probation. We disagree. The record shows that the court carefully considered the relevant criteria before making its decision. As the court explained, it "spent a lot of time thinking about [appellants] case" before reaching a decision because it realized that when appellant was not drinking, he was a "hard-working man who takes care of his family." The court stated that it was denying probation because appellant had suffered six prior convictions for driving under the influence and because he was a risk to the community. The court, therefore, properly exercised its discretion by considering appellants prior record, the likely effect of imprisonment on appellant and his family, and the likelihood appellant would be a danger to others if he was not imprisoned.

We reject appellants contention that the court should have placed him on probation and committed him to jail instead of denying probation and sentencing him to state prison. According to appellant, a jail sentence would have satisfied the courts concern about appellants risk to community because appellant "would have served nearly the same number of post-sentence actual days in custody. . . ." Appellants argument — unsupported by any authority — does not demonstrate that the courts decision to deny probation and sentence appellant to state prison was "arbitrary or capricious," nor that it "`exceed[ed] the bounds of reason." (Du, supra, 5 Cal.App.4th at p. 831, quoting People v. Warner (1978) 20 Cal.3d 678, 683.) The record demonstrates that appellant had numerous prior DUI convictions and that he had reoffended multiple times while he was subject to grants of conditional sentence. The courts decision to deny probation and sentence appellant to state prison — rather than to county jail — was therefore not an abuse of discretion.

DISPOSITION

The judgment is affirmed.

We concur:

Simons, J.

Needham, J.


Summaries of

People v. Osorio-Blanco

Court of Appeal of California
Jul 30, 2008
No. A120729 (Cal. Ct. App. Jul. 30, 2008)
Case details for

People v. Osorio-Blanco

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. HUMBERTO EULALIO OSORIO-BLANCO…

Court:Court of Appeal of California

Date published: Jul 30, 2008

Citations

No. A120729 (Cal. Ct. App. Jul. 30, 2008)