Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. CRF07382, CRF07594
ROBIE, J.
Defendant Diana Lynn Smith appeals from the trial court’s imposition of a prison term in two consolidated cases after the court revoked probation in the first case and denied her probation in the second. We shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Case No. CRF07382 (Theft Case)
On June 20, 2007, defendant was charged with theft or embezzlement of a value exceeding $400 from an elderly or dependent person for whom she was a caretaker.
On July 25, 2007, defendant waived preliminary examination, changed her not guilty plea, and pled guilty with the understanding that if the trial court accepted the plea it would not impose an immediate prison sentence.
According to the probation report in defendant’s second case (see below), between the dates of her original plea and her change of plea in this case (theft case) defendant was booked into Yuba County Jail on a Vehicle Code violation. When jail deputies strip searched her during booking, they discovered half a morphine tablet in her inhaler and a cigarette under her breast. She claimed she had forgotten those items were there. The deputies reminded her that smuggling narcotics into jail is a felony.
Defendant, one of a staff of caregivers for the 97-year-old victim, took money from his wallet five times. Twice she was videotaped in the act. She admitted only the last theft. She likewise told the probation officer she had taken only $70 and had no idea why she “‘was not herself’” that night.
Defendant, aged 47, said she had worked as a caregiver for elderly clients for 20 years. She was the primary provider for her family, which included her husband and two adult sons; her husband and one son were on disability. She also claimed to suffer from high cholesterol, low thyroid, chronic obstructive pulmonary disease, asthma, severe back pain, osteoporosis, and pancreatitis.
Noting that defendant had served a prison term for welfare fraud in 1982, and still denied stealing most of the amount alleged in the present case, the probation report questioned whether she had been rehabilitated. However, because of her “sincere desire to care for elderly persons” and her multiple medical problems, the report recommended probation for three years, including a year in jail.
On September 24, 2007, the trial court accepted defendant’s plea and granted probation for three years with conditions that included serving 120 days in jail. Defendant now admitted that she stole $100, $570, $100, $90, and $130 on five separate occasions.
Case No. CRF07594 (Drug Case)
On December 19, 2007, defendant was charged with bringing controlled substances into jail and possession of opiates on September 24, 2007, the date of her sentencing in the theft case.
When defendant reported to jail after sentencing, deputies found six morphine sulfate pills duct taped to the sole of her left foot and seven pills (six Percocet and one Soma) duct taped to the sole of her right foot. She denied possessing any other contraband. But a deputy then found two medicine patches on her lower back, which proved to be fentanyl. She claimed a current prescription only for the Soma. She said the pills were for back pain; knowing it was a felony to smuggle them in, she had tried anyway because the last time she was there the medical staff had not let her take pain pills.
On January 22, 2008, defendant pled guilty to bringing controlled substances into jail and the second charge was dismissed. She admitted violating probation, on the understanding that she could receive a maximum prison term of four years and eight months in her two pending cases.
In the probation report for the drug case, defendant said that while in jail she received too much lithium, causing a stroke and brain damage. She had to stay in the hospital for three weeks, followed by a month of treatment in a nursing home, from which she was discharged on November 21, 2007.
An internal Yuba County Sheriff’s Department memorandum dated October 12, 2007, attached to the probation report, stated that defendant was hospitalized on October 5, 2007, with elevated lithium levels. As of the memorandum’s date she was in the coronary vascular intensive care unit, unable to eat, drink, or speak coherently. The memorandum also observed that the county “is facing a substantial medical liability while she is in our custody.” It recommended her release.
Defendant felt she should not serve any more time in custody because of her illness. Requiring her to repay the money she stole was punishment enough, and it was hard on her children to be without her.
As mentioned above, both “children” living with defendant are adults.
The probation report observed that defendant’s two prior felony convictions made her ineligible for probation unless this was an unusual case, but no facts showed that it was. (Cal. Rules of Court, rule 4.413(b), (c).)
All further rule references are to the California Rules of Court.
Under “criteria affecting probation” (rule 4.414), the report found several counting against probation, including: “[t]he nature, seriousness, and circumstances of the crime, when compared to instances of similar crimes, fall above the norm when it is noted that the defendant had previously been caught and advised of the penalty for this same offense” (rule 4.414(a)(1)); “[t]he defendant was an active participant in the crime” (rule 4.414(a)(6)); “[t]he defendant’s prior criminal conduct, including the recency and frequency of the crimes, is beginning to indicate a pattern of regular and increasingly serious criminal conduct” (rule 4.414(b)(1)); “[t]he defendant was on a grant of probation for a violation of Section 368(e) of the Penal Code in Yuba County [and]... violated her probation within minutes after sentencing[; thus] [t]he defendant’s prior performance on probation has been unsatisfactory” (rule 4.414(b)(2)); “[t]he defendant has a multitude of health issues, is unemployed and her income relies on Social Security Disability benefits, [she] has not completed her basic education, and has adult[-]aged children residing in her home and relying on her support[;] [t]hese factors could hinder her ability to comply with probation” (rule 4.414(b)(4)); and “[t]he defendant, despite her plea of guilty, exhibits no remorse[;] [c]onversely, the defendant attempted to rationalize her crime” (rule 4.414(b)(7)).
Under “circumstances in aggravation” (rule 4.421), the report found that defendant’s prior convictions as an adult are of increasing seriousness (rule 4.421(b)(2)); defendant had served a prior prison term (rule 4.421(b)(3)); defendant was on probation when the crime was committed (rule 4.421(b)(4)); and defendant’s prior performance on probation was unsatisfactory (rule 4.421(b)(5)). Under “circumstances in mitigation” (rule 4.423), the report found none.
The report recommended an aggregate prison term of four years eight months. As to the drug case, the report stated that defendant “made the conscious choice to possess narcotics prior to being sentenced and compounded the matter by taking them into the jail.” She argued that she needed them because she would not have received anything in jail. The report commented, “[I]t is ridiculous for the defendant to believe the amount found in her possession would have been sufficient to last the duration of her jail sentence.” Furthermore, though her prescription was only for morphine patches, she was obtaining and using morphine in oral form, which indicated that she had probably been committing this offense regularly. This offense made clear that she had never intended to comply with the conditions of probation or to obey the law.
The report also stated: “The defendant was originally placed on probation in [the theft case] for violating the trust and confidence of a very elderly gentleman when she stole money from his wallet as he lay asleep in his bed only a few feet away. This behavior should not be viewed casually. However, this department recommended leniency, despite any factors in aggravation greatly outweighing those factors in mitigation. This department will not be recommending the same leniency again.”
The trial court stated that it intended to impose an aggregate prison term of four years eight months. The court found that defendant was not “an appropriate candidate for probation in either case” and that there were no factors justifying an unusual case finding in the drug case.
Defense counsel argued that the drug case was unusual because of defendant’s medical condition, that these circumstances (along with “early entry of plea”) should also count in mitigation, that the trial court should therefore impose the lower term in the drug case, and that sentencing should run concurrent if the court denied probation.
Repeating that defendant was not suitable for probation as to either case, the trial court denied probation and imposed the intended sentence.
DISCUSSION
Defendant contends that the trial court abused its discretion by finding that the drug case was not an unusual case justifying probation and by revoking probation in the theft case. We disagree.
I
Denial Of Probation In The Drug Case
Because defendant had two prior felony convictions (the theft case and the 1982 welfare fraud conviction), she was statutorily ineligible for probation unless the trial court found this to be an unusual case under rule 4.413(c). (See Pen Code § 1203, subd. (e)(4).)
Rule 4.413(c) provides:
“The following facts may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate:
“(1) Facts relating to basis for limitation on probation
“A fact or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including:
“(A) The fact or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence; and
“(B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense.
“(2) Facts limiting defendant’s culpability
“A fact or circumstance not amounting to a defense, but reducing the defendant’s culpability for the offense, including:
“(A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence;
“(B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and
“(C) The defendant is youthful or aged, and has no significant record of prior criminal offenses.” (Italics omitted.)
Rule 4.413(c) is to be read narrowly, so that its exception to the statutory limits on probation does not swallow the rule. However, an unusual case finding can also be made under rule 4.408(a), which provides that “additional criteria reasonably related to the decision being made” may apply to a discretionary sentencing decision. (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1227.)
Even if any fact listed in rule 4.413 exists, this does not necessarily show that the case is unusual: the trial court may find it so, but need not. (People v. Stuart (2007) 156 Cal.App.4th 165, 178.) We review the court’s determination under the abuse-of-discretion standard, which requires more than a showing that reasonable people might disagree with the court’s ruling: it requires the defendant to show that the ruling was irrational or arbitrary. (Stuart, at pp. 178-179, citing People v. Carmony (2004) 33 Cal.4th 367, 377.)
Defendant contends that “at least” two rule 4.413(c) facts exist here. We are not persuaded. But even if defendant were correct, the trial court would have been within its discretion to find that these facts did not show an unusual case. (People v. Stuart, supra, 156 Cal.App.4th at p. 178.)
Despite the qualifying phrase, defendant cites only two alleged rule 4.413(c) facts.
A
Rule 4.413(c)(1)
According to defendant, “[t]he fact or circumstance giving rise to the limitation on probation” was “substantially less serious than the circumstances typically present in other cases involving the same probation limitation” (rule 4.413(c)(1)(A)) because defendant brought controlled substances into the jail to alleviate personal pain, whereas such an offense usually involves smuggling in street drugs for sale in custody. Furthermore, defendant had “no recent record of committing the crime of narcotics possession or of committing crimes of violence.” (See rule 4.413(c)(1)(A).) Defendant misunderstands the rule she relies on and ignores the probation report’s factual findings.
As already noted, the “fact or circumstance giving rise to the limitation on probation” in this case is not the present offense but defendant’s prior convictions. (Pen. Code, § 1203, subd. (e)(4).) Thus, even if we were to credit her claimed motive for the present offense (despite the probation report’s skepticism), it is immaterial.
Furthermore, it is not true that defendant “has no recent record of committing similar crimes.” (Rule 4.413(c)(1)(A).) As the probation report recounted, she had committed the very same crime (though uncharged) two months before when booked into the same jail, and the jail deputies had pointed out to her that this crime was a felony. Nevertheless, on September 24, 2007, defendant came to court for sentencing prepared to repeat the offense and having taken pains to conceal her contraband more effectively this time. Thus, rule 4.413(c)(1)(A) does not assist her.
In defendant’s reply brief, she asserts for the first time that rule 4.413(c)(1)(B) (“The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense”) also supports her position. Because defendant has not shown good cause for not raising this contention in her opening brief, we need not consider it. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.) In any event, defendant had plainly not been “free from incarceration and serious violation of the law for a substantial time before the current offense,” which she committed on the very day she entered custody on her prior offense.
B
Rule 4.413(c)(2)Defendant also asserts that grounds for finding an unusual case can be gleaned from “a fair reading of the purpose behind the three [factors]” listed in rule 4.413(c)(2) as limiting culpability: participation in the crime under provocation or duress (rule 4.413(c)(2)(A)), commission of the crime because of a mental condition not amounting to a defense (rule 4.413(c)(2)(B)), and defendant’s status as “aged” (rule 4.413(c)(2)(C)). Defendant’s suggestion that rule 4.413(c) should be read expansively is incorrect (People v. Superior Court (Dorsey), supra, 50 Cal.App.4th at p. 1227), and her arguments for finding any of these factors present are unpersuasive.
Defendant asserts that her purported concern over receiving proper medical treatment in jail amounted to “circumstances of great provocation... or duress.” (Rule 4.413(c)(2)(A).) She cites no authority for this proposition, however; therefore we disregard it. (Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794.) Nor does she explain why the trial court had to accept her claimed motive as genuine. In any event, as the probation report pointed out, defendant could hardly have believed that the amounts of contraband on her person would meet her medical needs throughout her time in custody, and she did not have current prescriptions for two of the three controlled substances found on her. Whether she was incorrectly medicated in jail thereafter is immaterial, since she claimed to fear being denied medication, not receiving the wrong medication.
Defendant does not make any separate argument going to the second rule 4.413(c)(2)(B) factor she cites (existence of a mental condition). So far as she claims that her fear of inadequate medication in jail constituted a “mental condition” under the rule, this factor requires the existence of a diagnosable and treatable psychiatric condition, which defendant has failed to show.
Lastly, defendant’s assertion that she is “aged” within the meaning of rule 4.413(c)(2)(C) is unsupported. Defendant was in her late 40’s at the time of the offense. The rule’s use of the contrasting terms “youthful” and “aged” indicates that the Legislature intended this rule to apply only to the extremes of youth and age, and defendant cites no authority suggesting otherwise. In any event, defendant ignores the second half of this subdivision -- that the defendant “has no significant record of prior criminal offenses.” A twice-convicted felon does not come within this rule.
C
Rule 4.408(a)
Defendant asserts in passing that even if the factors discussed above do not come within rule 4.413(c), the trial court could still have considered them under the catch-all rule 4.408(a). For the reasons already given, the trial court acted within its discretion in refusing to do so.
When the trial court accepted defendant’s plea in this case, it advised her: “Ms. Smith, you’re also not statutorily eligible for a probation grant absent an unusual case finding, and it’s very difficult to ever convince the [c]ourt to make such a finding.” Defendant asserts that this remark proves the court had prejudged the matter before reading the probation report or any other evidence that might bear on her eligibility for probation. We disagree. The court was merely stating the obvious: if a defendant is statutorily ineligible for probation, to overcome the statutory presumption there must truly be unusual facts, which will inevitably be difficult to show. (See People v. Carmony, supra, 33 Cal.4th at p. 378 [extraordinary showing needed to overcome statutory presumption that career criminals come within the three strikes law].)
Defendant relies on People v. Wade (1959) 53 Cal.2d 322, overruled on other grounds in People v. Carpenter (1997) 15 Cal.4th 312, 381-382), but Wade is distinguishable. There, the trial court stated when it accepted the defendant’s plea: “‘The defendant, of course, fully realizing that there is no possibility of probation.... I am very certain that she is not eligible, and I am sure she understands it.’” (Wade, at p. 337, italics added.) When later pronouncing judgment, the court denied defendant’s request for probation, saying: “‘[T]here certainly isn’t any doubt in my mind, and I don’t think there is any in the mind of the defendant, that before I accepted her plea I very carefully made it clear to her, and she told me that she understood, what the course of the law would be.’” (Ibid., italics added.) Thus, unlike in the present case, the trial court in Wade had already declared in advance that the probation report could not possibly change its mind, which was an abuse of its discretionary power as to probation. (Id. at p. 338.) The Wade court’s egregious prejudgment of the case had nothing in common with the trial court’s legally correct advisement in our case.
For good measure, the trial court was legally mistaken. The probation officer stated that but for the court’s prejudgment of the case he would have recommended probation, because in his view (with which the appellate court impliedly agreed) the defendant was clearly entitled to it. (Id. at pp. 338-339.)
Defendant has failed to show that the trial court’s denial of probation in the drug case, for which she was statutorily ineligible, was an abuse of discretion.
II
Revocation Of Probation In The Theft Case
Defendant asserts that if we reverse the trial court’s denial of probation and imposition of a prison sentence in her drug case, there are numerous grounds to justify reinstating probation as to her theft case. But since we have found that the trial court acted within its discretion by revoking defendant’s probation in the theft case and imposing an aggregate prison term for the two cases together, defendant’s contention fails.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P. J., HULL, J.