Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Lisa A. Foster, Judge, Super. Ct. No. SCD195696
HUFFMAN, Acting P. J.
Ricky B. Paugh entered guilty pleas to four counts of robbery (Pen. Code, § 211) and one count of false imprisonment (§§ 236/237). He admitted using a deadly weapon in two of the robberies (§ 12022, subd. (b)(1)), a prior strike (§§ 667 subds. (b)-(i), 1170.12, 668), a prior serious felony conviction (§ 667, subd. (a)(1)) and serving four prior prison terms (§§ 667.5 subd. (b), 668). The court struck the prior strike and sentenced him to prison for 14 years, four months: the three-year middle term on one robbery conviction enhanced one year for weapon use, three one-year terms for prior prison terms, and five years for the prior serious felony conviction, with consecutive terms of one year on two robbery convictions (one-third the middle term), one enhanced four months for weapon use (one-third the term). It imposed a concurrent term on the false imprisonment conviction and stayed sentence on one prior prison term enhancement. The court denied a certificate of probable cause. (Cal. Rules of Court, rule 8.304(b).) Paugh contends the trial court abused its discretion in not sentencing him according to the indicated sentence.
All statutory references are to the Penal Code.
We have granted Paugh's request we take judicial notice of the information in SCD195696 that was not included in the clerk's transcript.
FACTS
Viewing the record in the light most favorable to the judgment below (People v. Johnson (1980) 26 Cal.3d 557, 576), the following occurred. On December 13, 2005, Paugh and a companion entered a Ramada Inn in Poway. Paugh's companion struck a Ramada employee in the face and threatened to kill him. Paugh bound the employee with duct tape. Paugh's companion took the employee's wallet and asked for keys to the safe. The employee said he did not have them. Paugh took the employee's laptop computer and left.
On December 15, 2005, Paugh entered a bakery in National City. He pointed a knife at an employee and took money from the cash register.
On December 17, 2005, Paugh entered a Wonder/Hostess outlet. He pointed a knife at an employee and took money from the cash register.
When Paugh entered his guilty pleas, the court said, "I have indicated that, with respect to sentencing, I will consider striking a strike strongly and that I will be looking at a sentence of somewhere between 11 and 13 years. Is that your understanding?" Paugh responded in the affirmative. At the sentencing hearing, after the court said it was considering a sentence of between 13 years, eight months and 15 years, defense counsel said she was a "bit taken aback" that the court was considering a sentence beyond the 11 to 13 years it had indicated. The court responded that it recalled having a long discussion on the sentence and "I gave you what I thought was the range, more or less, given I hadn't seen a probation report and really didn't know much about Mr. Paugh's background."
DISCUSSION
Determination of the appropriate sentence is within the trial court's broad discretion and must be affirmed unless there is a "showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordan (1986) 42 Cal.3d 308, 316.) "[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.] [I]n the absence of a clear showing that its sentencing decision was arbitrary or irrational" a discretionary determination should not be set aside on review. (People v. Giminez (1975) 14 Cal.3d 68, 72.)
Paugh recognizes that a specific sentence was not part of a plea agreement. Relying primarily on People v. Superior Court (Ramos) (1991) 235 Cal.App.3d 1261, Paugh argues the trial court abused its discretion because it did not impose the indicated sentence even though no new facts were brought to the court's attention between entry of the guilty pleas and the sentencing hearing. In Ramos, the reviewing court approved the trial court giving an indicated sentence to a career criminal over the opposition of the People. (Id. at p. 1271.) Paugh relies on those parts of the opinion where the reviewing court said the trial court may not impose the indicated sentence when the factual predicate is disproved or "new facts are brought out at the sentencing hearing showing that the 'indicated sentence' is not appropriate." (Id. at p. 1269.) The court noted that was not the situation before the court in the case it was reviewing. (Ibid.) The court's words are thus dicta. In any case, Paugh faced a possible sentence of 20 years, eight months. The trial court struck the prior strike and imposed the middle term on the principle count, reducing Paugh's sentence to 14 years, four months, a deviation from the indicated sentence of being in the area of 11 to 13 years. Paugh's trial counsel did not ask the court why it deviated from the indicated sentence and at no point has Paugh requested to withdraw the guilty pleas. The trial court did not abuse its discretion in imposing the 14-year, four-month sentence.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O'ROURKE, J., IRION, J.