Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-493771
Reardon, J.
Appellant Delbert Roy Stevens III appeals his conviction following an admission of violation of probation and imposition of a six-year prison sentence consisting of the three-year upper term on the vandalism conviction and a consecutive three-year term on a gang enhancement. He challenges as unsupported by the evidence the trial court’s selection of the aggravated three-year term on the underlying vandalism conviction. We affirm.
I. BACKGROUND
Pursuant to a negotiated disposition entered in September 2006, appellant pleaded no contest to felony vandalism and entered a no contest admission to a criminal street gang enhancement. The court advised appellant that he faced a maximum term of seven years. As well, the court granted the People’s motion to dismiss robbery, burglary and other vandalism counts with “Harvey [w]aivers at time of sentencing....” The court suspended imposition of sentence, imposed but stayed a six-month jail term, and placed appellant on three years’ probation.
Appellant was arrested for violating probation in January 2007. Following a contested revocation hearing in June 2007, the court found appellant in violation of probation for consuming alcohol and failing to be of good conduct. The court reinstated and modified probation to include the condition that appellant be released to a residential treatment program.
In July 2008, appellant admitted violating probation by failing to complete the treatment program. Probation was reinstated on September 2, 2008, on the condition that appellant serve the previously stayed six-month jail term after which he was to enter another residential treatment program.
Appellant was arrested yet again in January 2009 for another probation violation: wearing gang clothing and possessing gang paraphernalia. He admitted the violations. This time the court declined to reinstate probation and sentenced appellant to six years in state prison (three-year upper term for vandalism with a consecutive three-year term on the gang enhancement). Appellant received credit for 952 days in custody.
Regarding the predicate offense, the probation report states: “[Appellant] was placed on felony formal probation following a vandalism incident with an admitted enhancement pursuant to Section 182.22(b)(1)(a) PC. [Appellant] and his co-defendants were arrested after vandalizing vehicles they believed belonged to rival Sureño criminal street gang members.... [Appellant] further relayed... that he had little memory of the offense, as he was driving the vehicle that evening while heavily intoxicated.”
II. DISCUSSION
Appellant maintains that the trial court abused its discretion in imposing the aggravated term, arguing that his “[m]inimal [p]rior [h]istory” did not justify the sentencing choice. We disagree.
The trial court enjoys broad discretion in its sentencing decision, which we review for abuse of discretion. However, such discretion “ ‘must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue’.” (People v. Sandoval (2007) 41 Cal.4th 825, 847.) Thus, the trial court must exercise its sentencing discretion “in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an ‘individualized consideration of the offense, the offender, and the public interest.’ ” (Ibid.)
A. Record
The first probation report of November 2006 identified three aggravating factors: Appellant’s prior convictions as an adult and sustained juvenile delinquency petitions were numerous; appellant was participating on a grant of conditional sentence at the time of committing the instant offense; and his prior performance on juvenile probation was largely unsatisfactory. The subsequent reports recommended revocation of probation and a prison sentence of six years. At a hearing in September 2008, the probation officer stated the department was recommending state prison “based upon a pattern of noncompliance.” The final probation report contained the same recommendation of revocation and six years, referenced the original report as containing aggravating factors, and concluded that despite additional opportunities to complete probation, appellant continued to choose a negative lifestyle.
At the sentencing hearing the trial court observed that this was appellant’s third violation of probation, and the probation report recommended a six-year prison term. The court acknowledged it had previously warned appellant that he had “used up his last chance.” The deputy district attorney noted that it seemed apparent from the numerous violations and “it even continues to today that he blames the things that he was in possession of and he’s forgetful and everything else doesn’t seem to be his fault. [¶] His continued association with gang members and the gang lifestyle has gotten him into numerous situations before this Court.” Defense counsel acknowledged that probation was always a struggle for appellant. However, he had made strides. Apparently appellant had a job and was doing well in treatment. He has two small children. Defense counsel asked the court to consider sentencing appellant to “whatever additional jail time” would be appropriate and then release appellant and terminate his probation as “unsuccessful[].” Any prison sentence on the vandalism would be short because of his accrued credits.
Revoking probation, the court referenced appellant’s “ongoing detrimental lifestyle.” For the aggravated term, the court cited the three aggravating factors referenced in the original probation report.
B. Analysis
Neither defense counsel nor appellant objected to the selected aggravating factors, or suggested mitigating factors. Appellant admits this state of affairs. Claims that the trial court failed to properly make or articulate a discretionary sentencing choice, when first raised on appeal, are not subject to review. (People v. Smith (2001) 24 Cal.4th 849, 852.) However, to fend off any claim of ineffective assistance of counsel, we further conclude the trial court did not abuse its discretion in imposing the aggravated term.
First, appellant does not object to the trial court’s finding that he was on a grant of conditional sentence at the time of engaging in the underlying vandalism. (Cal. Rules of Court, rule 4.421(b)(4).) As appellant acknowledges, only one aggravating factor is necessary to support imposition of an upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.)
All references to rules are to the California Rules of Court.
Second, although appellant labels the finding that his prior convictions were numerous as “highly questionable,” he did in fact suffer three prior convictions, two as a juvenile and one as an adult. He simply argues that two were misdemeanor Vehicle Code violations and the third, threats to an officer, was a wobbler. Three convictions, including misdemeanors and the current felony, satisfy the numerosity rule. (See People v. Searle (1989) 213 Cal.App.3d 1091, 1098; People v. Ramos (1980) 106 Cal.App.3d 591, 609, disapproved on another point in People v. Scott (1994) 9 Cal.4th 331, 353, fn. 16 [nonserious offenses, such as juvenile adjudications for possessing alcohol or adult convictions for petty theft, count for numerous convictions factor].)
Appellant also attacks as “incorrect” the finding that his prior performance on juvenile probation was unsatisfactory. Nonetheless appellant acknowledges a juvenile probation violation was sustained based on having tested positive for “marijuana and alcohol, and having been seen running from a gang fight.” Further, he incurred a “minor violation” during the course of that probation. The probation report also indicated that appellant “performed quite poorly while under juvenile probation supervision and often attempted to minimize [his] conduct or offer questionable excuses for his poor behaviors.” The record supports this aggravating circumstance.
Conversely, the record does not support appellant’s assertion that two valid mitigating factors existed in the case, namely he was an “aider and abettor” in the underlying vandalism, not a principal, and he acknowledged guilt at an early stage. Our Penal Code does not distinguish between aiders and abettors and principals. (Pen. Code, § 31.) One who aids or abets the commission of a crime is a principal in that commission. (Ibid.) Circumstances in mitigation include the fact that “defendant was a passive participant or played a minor role in the crime.” (Rule 4.423(a)(1).) Here, appellant was the getaway driver for the criminal activity. He initially denied that role. A gang expert offered the opinion that appellant should be charged “the same for his participation in the incident.” Appellant was not a passive participant, and he played an important, not a minor, role in the crime.
Further, while appellant acknowledged his guilt at an early stage of the process (rule 4.423(b)(3)), he received a considerable benefit from the plea with the dismissal of several pending felony charges. Further, despite the plea, he continued largely to deny responsibility for his role. This mitigating factor is not supported by the record.
III. DISPOSITION
The trial court did not abuse its discretion in selecting the upper term on the vandalism offense. The judgment is affirmed.
We concur: Ruvolo, P.J. Sepulveda, J.